July 28, 2014 § 2 Comments
It’s been a while. I know. Such is life when you are maintaining a practice whilst packing house and home and moving to a new place. At one point, I decided to abandon Unwashed Advocate. I do this once a year, mostly during summer months. This decision is celebrated by me. It sure feels good to tell your blawg to go to hell.
Then, I return.
After writing brief after brief, appeal after appeal, it is nice to write something that contains your voice. Here, I don’t worry about using passive voice or botching citations. That’s nice.
So, what’ve I been thinking of this summer? Let’s check my direction and see…
Lawyer or Lawyer*
I love talking to other lawyers. I hate talking to other lawyers.
During one of those conversations where, while listening to the other lawyer drone on and on about what she thinks about the legal profession and other lawyers and how other women dress in court and contemplating my suicide plans if she doesn’t soon execute a Kopfian STFU…
She mentioned a particular legal case and remarked “I could never handle cases like that.”
“Huh?” I intelligently replied.
“I SAID I could never do cases like that.”
“Oh, so you’re an asterisk lawyer.”
“What did you just call me?” she retorted.
“I SAID you are an asterisk lawyer. You’re a lawyer, but only when the case or conflict supports and strokes your delicate sensibilities.”
“Are you saying…?”
“Yep,” I cut in, “deal with it. It’s just the type of lawyer you are.”
Knowing me, she got over it quickly, but it reminded me of something I’ve noticed for the last 10ish years.
There are a lot of asterisk lawyers out there.
First, a definition. An asterisk lawyer is a lawyer who is willing to zealously represent some. However, they are completely incapable of representing others.
Here are examples of lawyers*.
“I could never represent a man accused of sexual assault.”
“I could never represent big business.”
“I could never represent a terrorist.”
“I could never take a case representing the tobacco industry.”
“I could never prosecute…”
“I could never defend THOSE people…”
Do not confuse this with the following, which is not a lawyer*.
“I limit my practice to only scrotum husbandry cases.”
That last example is merely someone who limits their practice in order to be very good at one niche. That isn’t saying that they are flatly incapable of representing a particular side, client, or subject.
Lawyers* should be forthcoming about their limitations. Hence, the “*.” At the bottom of their bio, there should be the caveat that quantifies the *, like:
*Except men accused of sexual assault. They should all be emasculated once charges are filed.
*Except terrorists, who should be summarily executed.
*Except big businesses, who are just looking to screw the little guy. Having said that, I can’t wait to upgrade my iPhone and trade-up for the newest, loaded GM vehicle.
*Except the tobacco industry, because cigarettes kill, and that makes me sad and tearful.
Just as I don’t appreciate passionate lawyers, I similarly do not appreciate lawyers*.
A while ago, I started a case with a new co-counsel. They were relatively new to the legal profession but were generally enthusiastic about learning and perfecting the craft. The conversation started something like this:
“Eric, what part of the defense do you want me to work on?”
“None,” I replied.
“I want you to focus on prosecuting the case,” I stated.
Confused, they confirmed “You want me to prosecute the case?”
“Yep, and I want you to be flawless.”
Through the ensuing conversation, I explained myself. I wanted them to determine the most dangerous, horrible, loathsome, and damning things that could be done to us by the opposition and play the role throughout our preparations. Without that, our case was just flapping around aimlessly. I concluded the conversation as follows:
“And, when you do it, I want you to love it.”
I love what I do. Really. However, I could prosecute. I could represent a big, nasty, unfeeling, odious corporation. I could represent a nonprofit, and I could represent a party seeking to destroy a nonprofit. I would take on a client who committed (allegedly, of course) horrible, loathsome acts that would shock the conscience of the average person.
Our job as lawyers is to advocate for a particular perspective as part of an adversarial system. We don’t have to accept the perspective of our client into our own hearts. In fact, it is probably best that we not accept it. We fight for the case we are given, not the case that matches our delicate sensibilities. A lawyer can represent any client in any matter under any conditions. That’s what we are trained to do.
That’s what I want to see in a lawyer. That’s what I want to hire. That’s what I want as a co-counsel.
Everyone else is just a lawyer*.
Dunkin Donuts in the Afternoon
A few habits really say something about a person. Here are two examples.
Example 1: A person who drinks bourbon in the morning.
Example 2: A person who eats donuts after 2PM.
Today, I received an email saying that I could get a sweet discount on donuts after 2PM. Therefore, I plan to be one of those mentioned in the second example.
May 14, 2014 § 9 Comments
This is not about what we practice. It is about where we practice. Though, the two are often inextricably intertwined.
Yesterday, I enjoyed making fun of North Dakota with a few friends. I like this because, while I’m also from a sparsely populated state, I can always revel in the fact that folks in ND will always have it worse than me.
Statistical Tidbit: North Dakota population: 699,628. Kansas population: 2.886 million. Number of votes for Mark Bennett in his bid as a Libertarian for a seat on the Texas Court of Criminal Appeals: 1.326 million.
This got me thinking about where lawyers choose to live and work.
Some lawyers want to work in huge cities. New York. Washington. Boston. Philly. Chicago. Houston. San Francisco. Miami. Los Angeles. And the like.
Others prefer the smaller, yet significant cities like Oklahoma City, Fresno, Portland, Charlotte, Richmond, Kansas City, etc.
Others of us go for something…..well…..less substantial. I’m one of these.
Now, hear me out on this one. Consider a few important factors. I’ll grade each.
Availability of Work: A
Last year, I attended a continuing education seminar where the idea of selling, closing, and/or passing-on a practice was raised. The conversation morphed into some lamenting by an older lawyer from Colby, Kansas. He noted that it was virtually impossible to lure younger lawyers to the area. He feared that his practice would die with him. It wasn’t that he wanted to leave a legacy. Quite appropriately, he was worried about his clients who relied upon him for various legal needs. The paying work was definitely there, but too few lawyers live in the area to handle it.
Air Quality: A-
Overall, the air quality is fantastic. However, I did dock points for the occasional dust storm and summertime pesticide applications on the huge farms surrounding the town. Even with that, the air quality is markedly better than those facing persistent smog in larger cities.
Availability of Services: C+
Walmart put a gleaming new SuperCenter there, so all the basics can be handled. Aside from that, there are some mom’n’pop stores and cafes coupled with a few chain places along I-70. While I’ve seen worse, folks in larger cities definitely have it better. Colby is still working on its status as a great place to find quality seafood.
Good news: no hurricane threat, fairly ho-hum temperate environment.
Bad news: Can get bitterly cold in winter, especially with the near-constant westerly winds. Every time you glance at clouds to the southwest, there’s the constant wondering whether they might be bringing a long-overdue F-5 tornado.
At more than 3000 feet above sea level, you’re safe from the flooding that’ll be cause by those pesky Antarctic ice sheets. For a while.
Things to Do: B-
You might be surprised to learn that Colby is the home of the Prairie Museum of Art and History and is conveniently located just 2.5 hours from Mount Sunflower, the highest point in Kansas. Check out this site which goes into more detail about Colby. Be sure to also check out the “8 Wonders of Thomas County, Kansas.“
Denver is a mere 4 hours along I-70, and the thriving metropolis of Hays, Kansas is just 2 in the other direction.
This is a great place for those who find sport in observing mullets in their natural environment.
Cost of Living: A+
To give you a bit of understanding for how far a dollar goes in Colby, look no farther than the local restaurant reviews. A Qdoba opened along I-70, and one of the locals regarded it as being “pricey.”
Average home price is less than $60 per square foot. That’s great considering that most of the US is higher than $75/. Commercial office space is equally (if not more) cheap and is readily available. I can already see myself as a valued neighbor to the Feed’n’Seed store.
As for everything else, expect to pay very little for the goods that are available. Of course, most expensive goods are not available, so your sorta forced to be frugal. Going to a fancy restaurant with the ladyfriend equals steaks at Montana Mike’s.
Quality of Work: A
This is largely a matter of perspective. You really have no choice but to be one of those small town guys who does a little of everything. From divorce to criminal to small business to municipal to animal husbandry. You’ll do all of this because the community needs you to do it. Prepare to travel to nearby (nearby = 2 hours) counties to appear in those courts. For those with adult ADD, you’ll be in heaven. For those who want to become a subject matter expert in one, specific, sharply-definied niche, this wouldn’t be a good marriage.
Sick of traffic every morning and afternoon? That doesn’t exist here. To Colbites, “traffic” is something that is occasionally observed zooming-by on I-70.
You’ll be a bigwig in the local chamber of commerce along with the banker, pharmacist, and funeral home director. The little league team will bear your firm’s name on the back of the jerseys. If you learn how to square dance, you’ll be mayor in a few years.
Overall GPA (on a 4-point scale): 3.42
That’s a solid GPA that would put most students on the honor role. As far as places to work, you couldn’t ask for better, as long as you’re not a big fan of choices……and seafood.
May 6, 2014 § 2 Comments
In preparation for a move east at the end of the month, I told #63 that he’d be operating the blocking vehicle while I transport “the goods” in the “rig.”
I followed-up by telling him that his call sign would be “Bandit,” and I’d be “Snowman.”
His vacant expression told me that all references were completely lost on him.
Though, just for good measure and for my own amusement, I may pack a case or two of Coors.
May 6, 2014 § 8 Comments
Well, aren’t you special? You polluted the earth with your offspring, and now you want to show everyone how special your little air thief is by sending them to a first-tier school. How capital of you.
I know. I’m cruel. However, as it applies to the above paragraph, it takes one to know one. I am one. So, I know ones when I see ones.
This is obviously not going to be a law-related post. It is a post for those of you who envision your child(ren) going to a fancy-schmancy top national university (per the intrepid folks at US News). For the last year or so, I’ve lived this odyssey. It is fun at times, but, mostly, it sucks–like having kids in general. We tell ourselves that having children is a wonderful experience and we wouldn’t change it for the world. In reality, it is an experience that causes premature aging and unnecessary suffering. We devise these wonderful platitudes about raising kids in a pathetic attempt to make ourselves feel better about the misery we’ve brought upon our once-amazing lives.
If you have no kids and are reading this out of pure curiosity or chance, it is not too late to obtain a vasectomy or tubal ligation. Consider having the procedure done twice.
If you have kids who are approaching college age, then I’m sorry. Just keep telling yourself (as I tell myself) that your kids are wonderful and you couldn’t imagine life with out them, and that they make you happy………..blah blah blah. Keep repeating the mantras. Have a Xanax.
Now, let’s jump into this whole first-tier college thing before we get too depressed about the high price we pay for sexual intercourse. These are just a few thoughts I had this morning about my experiences for the past many months. It is hardly all-inclusive.
First, your child needs to go to a college where they feel at home. They are the ones who must live, learn, experiment with drugs, and have sex at this place. Once they graduate, the college becomes part of their identity. As much as some try to deny it, we are judged by where we went to college. There is no choice but to live with it.
Your child should make a decision on college based on:
- What college feels like “home.”
- What they want to study.
- What the college can do for their ability to obtain meaningful employment and contribute to society.
- Where they want to live eventually.
- The college’s reputation.
- Cost and ability to pay.
None of this includes “Where mommy and daddy want me to go.” It never will.
So, what benefit do you get? After all, you’re the parent. You helped pay for this education. You worked hard, pushing little Dakota* to excel in high school to get into this expensive college. As compensation, you get to wear a t-shirt that says “_________ Mom” for four years. You must wear it sparingly, lest the parents in your community whose kids attend East-Northwest North Dakota State Wesleyan Half-Online University might think that you’re the pretentious prick you are. Once your child graduates, continuing to wear the t-shirt makes you look pathetic. That’s your only tangible benefit, and it is fleeting. I wish I could say more, but I can’t.
Some parents won’t stop talking about where their kid is going to college. Every conversation begins with “You know, my son, Dakota, is doing sooooo well at ____________. I’m just so proud of him.” Make no mistake, you become known as that jerk whose life revolves around Dakota’s accomplishments.
Encouraging and supporting your child to do well in high school is great, and all. However, college is not about you. It is about them. Don’t treat them as a 401K. Keep it in perspective.
If your analysis of a college includes “I just always wanted to go there..,” then your child should absolutely not go there. College is not for your vicarious needs. It is there for your child to hopefully provide future value to society. It has nothing to do with you.
There is nothing wrong with making sure your son/daughter understands that you are sending them to college in order to ensure that they will not be living at home after it is done. Emphasize that they must use their college education to find a job. You’re not a bad parent because you expect your child to act like an adult when they become an adult.
The Campus Visit
You get giddy just thinking about it, don’t you? You get to visit a college campus with Dakota, bonding and talking about their future, wonderful existence.
Nope. That’s not the way it works. Let’s review the average campus visit timeline for a better understanding.
7AM: Parent jumps out of bed, ready to visit CAMPUS! They dance around, drinking coffee, happy that the day is finally here. Teenager acts like a teenager at 7AM. They suck all the happiness out of the room.
8AM: Start driving to campus. Parent wants to chat incessantly about the campus and what-ifs about how it might be. Teenager wants parent to shut the fuck up.
8:45: Where the hell do I park? THERE’S NOWHERE TO PARK.
8:58: Finally parked at $20 per hour garage 2 miles from campus.
9:10: Covered in sweat from running to campus, arrive at admissions department briefing that was supposed to start at 9AM. Room is full of sweaty parents and kids who parked in same garage as you.
9:15: Briefing begins, led by low-paid admissions staff member. Generally, they graduated from the university within the last 5 years and were unable to find employment elsewhere.
9:15-9:30: You are told that the college is unique because of the teacher-student ratio, the innovative freshman core curriculum, the collegial atmosphere, etc, etc, etc. On your first campus visit, you are impressed by this. On your second campus visit at another university, you are amazed that they are unique in the same way. On the third visit you realize that it is all a bunch crap and every one of them is exactly the same.
9:30-9:45: Admissions requirements! This is where you’ll learn who has a chance and who doesn’t, right? Wrong. They’ll state that they use the “whole person concept” and do not solely use standardized tests and GPA. Bullshit. How can you review 30,000 applications each year and consider each as a “whole person?” You can’t. Many get chopped based on solid, objective criteria (i.e. standardized tests and GPA). Your child needs to be in the 90th percentile or above on standardized tests to have a real, solid shot. They’ll never admit this, and you may not like the reality or their denial of the same. Deal with it.
9:45: Oooh, they’re starting to talk about financial aid. You take scrupulous notes. They tout the university’s strong commitment to providing “100% of demonstrated financial need.” This makes you temporarily euphoric. Note my use of the word “temporarily.” More on this later.
9:50: A question-and-answer period. Your offspring will not have questions. If they do, they are an asshole, per teenage law. You should not ask questions, even if you have a question. That’s what the internet is for, and I promise that, if your question is truly important to a college education, something is on the googles about it. While your question may be important to you, I guarantee that it is not important to anyone else in the room.
9:51: Mother in obnoxious sweater asks whether her little zit-faced urchin will have research opportunities. Evidently, some internet site says that parents should ask about this. Let me provide a standing answer. Your child is going to be an undergrad. Their goal should be to survive as best as possible. No professor wants your unproven offspring to assist in their important studies until they at least have a college degree and are willing to pay for post-graduate studies. However, they may be able to witness research while mopping floors and cleaning urinals in the research area. That’s it.
9:54: After prefacing his question by haughtily stating where he went to college, a father asks a financial aid related question. This is answered with the “100% of demonstrated financial need” spiel.
9:56: Morbidly obese mother asks whether campus food services can provide for her child’s delicate (and, presumably, voracious) dietary needs. Don’t worry about the answer to her question. However, do pray that this is not your child’s roommate.
10AM: You move outside for the long-awaited campus tour, led by a student (or students) specially selected by the admissions department for their lack of noticeable facial blemishes.
10:01-10:02: Group gathers. Parents size each-other up. Clothing is compared. You are relieved that your kid has fewer pimples relative to the others.
10:02-10:30: Campus tour. The student-guide walks backwards, spouting various information about the campus that may or may not be true. They point at granite/limestone/brick buildings, stating things like “This building houses our East African Monkey Scrotum Advanced Studies Department.” The guide explains that this is the only university with such a department. Everyone acts impressed at the university’s dedication to unique areas of academia.
10:30-10:45: You reach the student union. Here, the guide will talk about various student organizations. Some will sound mundane. Some will sound fun. Some will sound like total bullshit.
10:38: Walk past on-campus Chipotle-knock-off restaurant.
10:45: Some schools will provide a brief dorm tour. Make note of the room sizes, average number of roommates, and overall cleanliness. Listen to see if any dorms have particular reputations. Lastly, remember that this is where your beautiful child will first experience the joys of unprotected sex with a relative stranger after a night of binge drinking.
11AM: Tour ends. Guide remains to answer any questions. Keep in mind that the guide really doesn’t want to answer your questions. He/she just wants to get away from all the idiots (you).
11:02-11:30: Attempt to talk to your child about the visit. They will reply in noncommittal grunts, giving you no indication whether they liked the experience or not. Just imagine a pleasant conversation in your mind. Sure, it may be delusional, but you’re a parent. So, it’s OK.
Remember what I said about “100% of demonstrated financial need?” Well, we’ll discuss that here.
First, let me be absolutely clear about something. A top tier university costs about $70,000 per year. My number is more than what most colleges will quote, but it includes a healthy allowance for incidentals, including travel to and from for holidays and breaks.
If you’re reading this, you probably have a high-performing kid who has great grades and a solid ACT/SAT score. They could probably receive a full/near-full scholarship to a big-name state university. There is no shame in this. Harvard is a wonderful place for some, but a shitty place for others. It may be that your child is one of the latter. That’s fine. Really, mom, it’s fine.
So, let’s move to dollars and cents, focusing on that $70K per year big-name jobbie.
Right now, you’re reading this on a computer, right? Is it your computer? If it is, that means that you are able to own a computer. You have no demonstrated financial need. Pay 100% tuition and fees. If it is not your computer, then that means you must have walked somewhere to use someone else’s computer. That means that you were able to feed yourself sufficiently enough to muster the energy to make the walk. Knowing this, you have no demonstrated financial need. Pay 100% tuition and fees.
Do you and your child live in a cardboard box in a wooded park or abandoned lot? You might have demonstrated financial need. However, you must provide a high-quality digital photo of the box.
OK, OK. I wasn’t really fair with that. Let me be slightly more appropriate.
We are going to use two families as an example.
Family A is a modest middle-class family. 2 kids, mom stays at home, dad works as a mid-range blue collar worker. They live in a modest home that fits their needs, but nothing more. Dad pulls-down about $65K per year because he worked hard and was named as a foreman in his factory. The family lives modestly, buys used cars and drives them for their whole lifespan, investing money into a decent nest-egg, with only occasional, scrupulously-planned frivolities.
Family B is very similar to Family A. 2 kids. Mom stays at home. Dad works in the same factory as the dad in Family A, also as a foreman earning $65K per year. However, this family blows their money as soon as they spend it, with an Xbox, Playstation, and consumer debt for a new car every two years, a 4-wheeler, a boat, and a swimming pool. They have no savings. Money is spent as soon as it is earned. For this family, credit cards are made to be maxed-out.
We would all agree that Family A is smart, doing all the things that financial planners say you should do. They are responsible and willing to sacrifice a bit in order to build security for the future. Good for them. The reward? They get to pay $100 tuition and fees. Congrats.
Why? They have savings and are clearly not in a current financial hardship. They have the means to sacrifice a bit more, dip into those savings, and help pay for renovations on the university’s football stadium and an expansion to the student union to house a Ben and Jerry’s ice cream shop. The university deeply appreciates the dedication and sacrifice.
What about Family B? They are hedonistic, with consumer debt for luxury and excess goods. However, they have no savings in which to dip, and their income to debt ratio shows that they have placed themselves in a horrible current financial situation. Bankruptcy is a real possibility for them, especially once they purchase a second 4-wheeler. They will receive significant financial help from the university because they have a demonstrated financial need.
Who do you blame for this horrible disparity. Look no further than that Free Application for Federal Student Aid (FAFSA). This form must be completed by anyone looking for financial aid (even loans) through the school.
Let me be blunt. The FAFSA is not looking for financial need. It is looking for financial means. Don’t delude yourself to believe otherwise.
But, hey, is there really a limit to how much you’d pay to make Dakota happy? Of course not.
Save your pennies, mom. Or, better yet, get those his and hers Harleys you’ve been lusting-for all these years. Don’t worry about the fact that you can’t ride a bike or operate a clutch. You want them. You should get them. Pay full price. Empty your coffers and pile-up consumer debt. It could save you $280,000 in the long run.
There may be follow-ons to this post, as the mood strikes me. After all, this is just the tip of the college hell iceberg.
*Based on my cub scout leader experiences, Dakota seems to be a very popular name for boys. My den consists of Dakota, Logan, Cooper, Dakota, Ethan, Dakota, and Bill. God bless Bill’s parents.
May 1, 2014 § 2 Comments
This is a story that has very little traction outside of military law circles, but it should outrage both prosecutors and defense counsel alike.
Imagine that you’re in trouble, and special agents are crawling around, amassing a possible case against you. You wouldn’t just sit on your hands, especially when you know there’s evidence to support your case. You hire a lawyer or assemble a team of defense attorneys to work on your case and perform their own discovery.
If you’re one of the accused’s defense attorneys, you want to get as much information as you can as quickly as possible. In some cases, you might want to share information with special agents, if it is reasonably calculated to help your client. Of course, your client might give you a few leads on potential witnesses (character or otherwise), and you’ll want to talk to these potential witnesses as soon as possible, locking-in their statements and gaining a higher level of understanding in the case. All the while, you act in an ethical manner, zealously representing your client. Gathering information is a necessary (and required) part of the job.
Everyone knows that the preceding two paragraphs are logical and reasonable.
Well, that’s what I once thought. Apparently there are those who think otherwise.
In the Military District of Washington, there are those who believe that defense attorneys should do an investigation into a case, but only when the government says so.
Let’s review a timeline of events, taken from a Petition for Extraordinary Relief filed before the Army Court of Criminal Appeals (ACCA).
- Feb. 21, 2014, an active-duty Judge Advocate (military lawyer) was suspended from his job as Chief of the Trial Counsel Assistance Program (think-tank designed to help military prosecutors do their job). He was alleged to have committed a sexual assault. This soldier falls under the authority of the Military District of Washington (MDW).
- Feb. 23, accused officer requested counsel through the Army’s Trial Defense Service (TDS, the Army’s public defenders). He was assigned counsel from Ft. Leavenworth, Kansas.
- Mar. 4, Army CID (Army’s version of the FBI) requested that the accused officer report for questioning.
- Apr. 2, Staff Judge Advocate of Military District of Washington called defense counsel. He informed defense counsel that the complaining witness (alleged victim) was upset that defense counsel was probing around and asking questions of various individuals that may or may not be associated with the case. SJA asks that defense counsel cease their investigation.
- NOTE: Staff Judge Advocate (SJA) in the Army is the senior legal advisor to a commanding general, and the Military District of Washington (MDW) encompasses a variety of military units in the DC area as well as a few elsewhere.
- NOTE: US Army Trial Defense Service also falls under MDW for command and control purposes. This is done in order to create a stovepipe effect where a TDS lawyer at, say, Ft. Bragg, NC, is able to act independently and not be subject to the authority of local commanders. For this case, however, it creates an interesting situation, considering that all actions come from the MDW.
- Apr. 3, the Deputy SJA for MDW called defense counsel and stated that SJA is “going to have [their] commander, battalion commander…have [accused soldier] report in and he is going to issue him basically an order to cease and desist with this investigation.”
- Apr. 4, defense counsel sent the MDW SJA an email. In that email, defense counsel summarized the acts thus far and explained that orders to limit the proper and ethical investigation conducted by defense counsel is unlawful. Defense counsel also explained that the situation had been briefed to the Chief of the Army’s Trial Defense Services, and the Chief ordered defense counsel to continue to zealously represent their client.
- Shortly afterward, MDW SJA responded, merely noting defense counsel’s concerns. He further stated that “Any violation of that order will be at [the accused soldier's] peril.”
- NOTE: The prior bullet is where you should be saying “What the hell?”
- Apr. 4, the Battalion Commander for the accused soldier issued an order to the accused soldier. In writing, it stated that the accused soldier is not to “discuss any facet of this case with any witness or potential witness.” It continued (NOTE: Pay very close attention to this one) to say that “this prohibition also applies to any and all third parties, agents, proxies, or attorneys who may act at [accused soldier's] direction or represent [accused soldier].[emphasis added by me]
- NOTE: It is now appropriate to say “Holy shit!.” Those of you older than 45 may, as manners permit, shit your pants.
- RECAP to this point: A senior Army lawyer who is a Colonel just apparently condoned and encouraged a Battalion Commander to issue an order for defense counsel to stop doing their job.
- Let’s continue…
- Apr. 8, accused soldier files a request for redress to the Battalion Commander, asking that the commander rescind his order.
- Apr. 14, Battalion Commander denied, in writing, this request for redress.
- Apr. 15, Petition for Extraordinary Writ filed with the Army Court of Criminal Appeals. Petition is here and brief in support of petition is here. The brief contains all of the exhibits, to include emails, the written order, etc.
- Sometime shortly before Apr. 23, the order to cease and desist is withdrawn.
- Apr. 23, Petition for Extraordinary Writ withdrawn.
This factual sequence creates many questions. Let’s examine a few that come to mind.
1. Did Lieutenant Colonel Mark R. Biehl, the commander of Headquarters Command Battalion for the Military District of Washington act as a lone idiot, or was he acting on direction from legal counsel (the SJA and his Deputy SJA)?
Enclosure 1 to the brief is the memo given to the accused soldier by LTC Biehl. This memo is fairly bland, with no legalese or other indicators that it was written by a military lawyer. That doesn’t mean it wasn’t, but we are looking to see, at this point, whether Biehl was encouraged by JAG to issue this insipid order.
However, scrolling down to Enclosure 2 shows the email chain between Lieutenant Colonel Warren Wells (defense counsel) and the MDW SJA, Colonel Jim Agar. This is where COL Agar states “Any violation of that order will be at his peril.” Such strong language seems to indicate familiarity with the order. If you read the portion written by LTC Wells, you will see that he makes COL Agar fully aware of the fallacies and legal problems with the proposed order.
Further, Enclosure 3 is a transcript from a voicemail message left by MDW Deputy SJA, Lieutenant Colonel Paul Golden. Considering that he works closely with the MDW SJA. This gives more indication that they are aware of the intimate details of the order.
Now, go all the way to Enclosure 10. This is LTC Biehl’s response to the accused soldier asking for redress (requesting that the order be lifted). Look at the way it is written. Does that appear that it was written by a non-lawyer Battalion Commander? He cites case law and does a decent job with bluebook citations. I seriously doubt that LTC Biehl wrote that memo.
All of this considered, I find it extremely doubtful that the MDW SJA, Deputy SJA, and perhaps a few others in their office did not fully understand the nature and scope of the order.
2. But, shouldn’t the accused soldier not go around talking to witnesses and or the complaining witnesses?
True, to an extent. Orders preventing such behavior are often given, but they are very narrow in scope and never address actions by defense counsel.
For these orders to be legal, they must be very narrowly tailored and specific. The most common is a no-contact order preventing the accused from having contact with the complaining witness. No problem. This is where defense lawyers enter and conduct their investigation.
3. Why did they do this?
I don’t have the answer. I merely have suspicions. After all, knowing that such an order is inappropriate and illegal is a skill learned in the first year of law school. For it to be condoned by several seasoned military lawyers is baffling to me.
Suspicion 1: Congress is all up in the military’s underwear about sexual assault. The pressure to obtain convictions is high. Every acquittal and/or refusal to prosecute results in more hours of congressional testimony. Commanders feel the pressure. Military lawyers feel the pressure. The higher you are in rank, the more pressure they feel.
Suspicion 2: Defense counsel was kicking the government’s ass in the early stages of investigation. It is uncontroverted that defense counsel was acting both zealously and ethically in doing so. Prosecutors hate when defense counsel is one step ahead of them–let alone several miles as in this case.
The Army’s Trial Defense Service has a swagger about it. They walk into courtrooms expecting to win. This makes those on the government side of things more and more desperate.
Suspicion 3: The overwhelming drive to accommodate alleged victims in the military.
The brief begins very poignantly:
In this case, the government has taken the extraordinary action of ordering the Petitioner and his assigned Trial Defense Service counsel to cease and desist in engaging in any investigation of the allegations against Petitioner, without a factual predicate of malfeasance, and simply at the behest of the purported victim.
Finally, let’s be clear. There is no good reason or excuse for threatening to punish a person accused of a crime because their lawyer acts appropriately and zealously on their behalf. Equally, it is never excusable to act in a manner calculated to impair or stop proper defense investigations. There is never a good reason for this. Never. Ever.
There never will be, either.
4. What are my thoughts?
Aside from the commentary above, I think two things, not that they really matter.
First, it makes me sad.
The MDW SJA was my last boss in the Army. At the time, he was the Regional Defense Counsel for the region in which I served as a Senior Defense Counsel. He was a great boss and very encouraging and supportive to me. He demanded that all defense counsel be zealous in representation and do everything ethically permissible to defend our clients.
I owe him a lot. He was a valued mentor.
Knowing that, I don’t understand how all this could have happened. Even now, I remain hopeful that he was somehow not fully aware of all the circumstances. Unfortunately, the evidence suggests otherwise.
Second, I love to see zealous and bright defense counsel go to work on a case. Here, Captain Justin Barnes, Major Frank Kostik, Lieutenant Colonel Warren Wells, Lieutenant Colonel Jonathan Potter, and Lieutenant Colonel Peter Kageleiry showed that some of the best lawyers are in the Army JAG Corps. They deserve recognition for working quickly and reacting deftly in filing the Petition for Extraordinary Relief. In this case, we have a soldier who is getting and will continue to get a top-notch defense.
Well done, gentlemen.
H/T to CAAFlog and a few others who are appreciated but will remain anonymous.
April 30, 2014 Comments Off
Can a villain also be a victim? Sure can.
By the way, the Donald Sterling big hot mess has nothing to do with the 1st Amendment, regardless of what folks on twitter tell you.
April 22, 2014 § 2 Comments
As I’ve said time and time again, you’d better hope that the judge doesn’t fillet pike and muskie with the same type of knife you used to kill someone.
If you find yourself in a case like this, take my advice. Find a judge who doesn’t fish. Or, if they all fish, find one with an even-keel temper who doesn’t act like he takes the case personally.
In the judge’s defense, perhaps he is up for reelection. That’s the only quasi-logical excuse for this behavior from the bench.