Got Security?

April 28, 2012 § 1 Comment

So, suppose you use the cloud and various web-based services to manage your practice.

Also suppose you take a fairly hot-button case such as representation of an alleged war criminal.

Now, suppose that the alleged war criminal cuts a deal with the government. It gives a little and takes a little, just as most deals do. You worked hard for it as his attorney, and your hard work paid dividends.

Hackers, upset when they discover that the outcome favors the alleged war criminal, go nuts with your practice’s cyber presence. Essentially, it is a raid of your cyber underwear drawer. You lose oodles of email files.

Where does your practice go from here? Some people might be pessimistic and predict death for your firm.

Those pessimists? They might be right.

I don’t know either of these lawyers, but that’s a damned shame.

I hope you all have fantastic passwords, and never forget that legal pads aren’t hackable online.

A Full White Caddy

April 28, 2012 Comments Off

I need a driver this week. Been thinking about Hunter Thompson. Not sure why. Don’t really care. He can’t drive though, but I wish he could.

So, who to drive?

Dan Hull leaves me no choice. He ripped out this week, jumping on all 8 cylinders of pure Detroit iron. He painted one helluva picture, but my eyes are looking at the frame. Solid, strong, uncompromising, and demanding your attention away from the splatters of paint.

Once he got behind the wheel of our white baby, the lines on the road weren’t law. They were just helpful hints.

He talked about what others wrote. That was nice, but I looked at the way he framed it. That’s what mattered. He collected three materials for absolute testosterone-infused-intellectualism. You know, the type that makes you feel like a crank addict upping the high with a shot from a defibrillator.

What do the three deserve as a ride? This'll do just fine.

So, who’d he use for a frame? Who’s he chauffeuring in the backseat?

None need introduction, so I’ll put it this way.

He starts by throwing-in a bit of William Shakespeare. Say what you want, join the trendy alternative believers, and claim him for less. This guy stands for one thing–moxie. Don’t believe it, just look what he wrote, and when he wrote it. You don’t do that without at least 25 gallons of mox in the tank.

Then he rode Teddy Roosevelt through the front plate glass window, splintering the hardwood floors, and ripping the fine upholstery. He doesn’t care, and why should he. You’ve got no choice but to look up and take notice. And listen.

Finally, he let Hunter Thompson in the back door, but not out of lack of respect. That’s just the door Hunter knocked-at. Don’t know why. Don’t care. He’s here, and that’s all that matters. He has a briefcase, too. That’s important.

I can’t lie. I think it’s missing something. Although, I’m partial. All three make a fine elixir, but I was born in the year that Oscar Acosta boarded a boat filled with white snow. I’ll never omit him from this party. That just wouldn’t be right.

Anyway, I felt the Caddy needed a spin. It’s been a great week, with some great writing, and people taking chances and leaving no room for regrets (here’s looking at a fiercely uncompromising Mark Bennett helping people in Houston to “get it”).

And we get to take it all in. How great is that?

Military Lawyer Firing Epidemic

April 24, 2012 Comments Off

Well, it happened in Bales. Now, it is happening in Manning.

Pfc. Bradley Manning has a new military lawyer working with his civilian defense attorney as he faces charges in connection with the largest leak of classified documents in U.S. history.

The Army intelligence analyst is suspected of leaking hundreds of thousands of classified military and State Department documents while serving in Iraq. Many of those documents ended up on the WikiLeaks website.

At a hearing Tuesday, Manning requested that the two military attorneys who were assigned to him, Maj. Matthew Kemkes and Capt. Paul Bouchard, be removed and replaced with Capt. Joshua Toomes. No reason was provided.

The judge in the case, Col. Denise Lind, granted the motion.

This seems to be en vogue for high-profile cases. Luckily, Manning’s lawyers have shown some self control when facing the microphones of the press, and we are left to wonder as to the specific reasons for the change.

The linked article also notes that prosecutors have also changed in Manning. However, this is actually not news because military prosecutors are fungible and regularly change during lengthy trials.

Just Say No to These Boots

April 18, 2012 Comments Off

If you are a self respecting man, you will not be caught dead in these “boots.”

If you need to wear sneakers, wear sneakers.

If you want to wear cowboy boots, wear cowboy boots.

These…..things……are abominations.

Oh, and you obtain the “worn look” on boots by wearing them. That is the only way.

I’ll be throwing up now.

Legal Note: Wearing these in Texas is a capital offense.

FBI vs. Cheese

April 17, 2012 § 4 Comments

This is a post about the FBI and Cheese. No, not the same cheese from “The Cheese Stands Alone” which caused a resumption of my Xanax habit. This is a different story, and I think the second-grader who drew it wanted to illustrate why some law enforcement have finally run plum out of patience. Read and learn.

The Cheese

A person sees Cheese ON THE FLOOR!

Call the FBI! Cheese is on the floor!

The FBI arrives!

They detain Cheese!

The FBI attempts to interrogate Cheese!

During interrogation, Cheese slaps the FBI!

Cheese drinks something.

Cheese grows huge!

There you have it. I think this explains a lot about law enforcement, all from the perspective of a 2nd grade student.

You Can’t Handle The CLE

April 17, 2012 § 2 Comments

Where was this when I was securing my 12 hours of Continuing Legal Education (CLE)(10 regular, 2 ethics) this year? (typed from the brochure I received today)

Film and Law Series:

“The Social Network”: CLE Credit: 8.3 Missouri, Kansas Applied For

“The Lincoln Lawyer”: CLE Credit: 8.3 MO, KS Applied For, 1.0 ethics

“My Cousin Vinny”: CLE Credit: 9.0 MO, KS Applied For, 2.7 ethics

Description of Series: Enjoy a movie and earn CLE credit! The $245 registration fee includes lunch. Attend two films at the discounted price of $395. The registration desk will open at 8AM and the seminar will conclude at 5PM.

So, let’s recap. I can get all but 3 of my required Kansas hours (plus all of my ethics requirements (with .7 to spare)) by watching “My Cousin Vinny” and talking about it for a few hours.

Glorious.

A Glowing Sentencing Case

April 16, 2012 Comments Off

After my (slightly) academic analysis about military sanity boards, you may be looking for something that has more literary value and attention-grabbing qualities. Look no further than this post by M. Night Pattis.

After reading the first paragraph, I supposed it would be a poetic description of a young man boarding a Navy cruiser and embarking on a 1-year tactical Navy deployment. Just as I assumed that premise, Norm knocked me to the ground and kicked two of my teeth-out (in a literary sense). SPOILER ALERT: The ending is sad. Really sad. And it establishes that discretion is not as bad a thing as lawmakers claim.

This brings-up something that I always took for granted: Mandatory Minimums.

In my little niche in the legal world, very, very few crimes have minimum sentences, and they are outliers in the grand scheme of Military Justice. 99% of all alleged military crimes lack any mandatory minimums.

I am accustomed to hearing this jury instruction:

In adjudging a sentence, you are restricted to the kinds of punishment which I will now describe or you may adjudge no punishment. There are several matters which you should consider in determining an appropriate sentence. You should bear in mind that our society recognizes five principle reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of his crimes and his sentence from committing the same or similar offenses. The weight to be given any or all of these reasons, along with all other sentencing matters in this case, rests solely within your discretion. (Taken from the Military Judges’ Benchbook)

That leaves just about anything (up to the maximum and down to no punishment) possible.

I must confess that I have largely taken this for granted. Unfortunately, public furor and the desire of public officials to be reelected demands that the bar for “tough on crime” be raised at a constant and consistent pace.

How do they get tough on crime? Two ways: increased maximums and established mandatory minimums. Usually, the mandatory minimums arise because some judge (who does that (typically) experienced lawyer think he is, using his experience and judgment?) awards a relatively light sentence after hearing matters presented in extenuation and mitigation. So, what do we do? We make a law that rips some of that discretion away and forces the judge to do nothing more than read from an excel spreadsheet. It is wonderful, unless you are someone who knows of the convict’s rehabilitative potential. Those darned people who weigh all the evidence.

So, thanks to Norm for that extremely insightful post, and thanks to society for demanding that all convicts wear a one-size-fits-all sentencing suit. Sure, it may cling to some like a glove, but others are left looking, feeling, and living the rest of their lives like absolute crap–deserved or not.

H/T to J. Kindley and anonymous for helping me to find the Pattis post again.

A Sanity Board: The Only Sane Thing To Do

April 14, 2012 § 3 Comments

The US v. Bales town crier (AKA his attorney) recently disclosed to the press that his client would not participate in a “Sanity Board.” Let’s talk about this for a bit.

The military sanity board. Such an interesting little tool included in the Rules for Court-Martial. The rule is as follows (complete and unabridged). Note: The Convening Authority in the Bales case is the Commanding General for Joint Base Lewis-Mcchord.

Rule 706. Inquiry into the mental capacity or mental responsibility of the accused

(a) Initial action. If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule.

Discussion

See R.C.M. 909 concerning the capacity of the accused to stand trial and R.C.M. 916(k) concerning mental responsibility of the accused.

(b) Ordering an inquiry.

(1) Before referral. Before referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the conven- ing authority before whom the charges are pending for disposition.

(2) After referral. After referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the military judge. The convening authority may order such an inquiry after referral of charges but before beginning of the first session of the court-martial (including any Article 39(a) session) when the military judge is not reasonably available. The military judge may order a mental examination of the accused regardless of any earlier determination by the convening authority.

(c) Inquiry.

(1) By whom conducted. When a mental examination is ordered under subsection (b) of this rule, the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist. The board shall report as to the mental capacity or mental responsibility or both of the accused.

(2) Matters in inquiry. When a mental examina- tion is ordered under this rule, the order shall contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination. In addition to other requirements, the order shall require the board to make separate and distinct findings as to each of the following questions:

(A) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term “severe mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.)

(B) What is the clinical psychiatric diagnosis?

(C) Was the accused, at the time of the alleged criminal conduct and as a result of such severe men- tal disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?

(D) Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense? Other appropriate questions may also be included.

(3) Directions to board. In addition to the requirements specified in subsection (c)(2) of this rule, the order to the board shall specify:

(A) That upon completion of the board’s investigation, a statement consisting only of the board’s ultimate conclusions as to all questions specified in the order shall be submitted to the officer ordering the examination, the accused’s commanding officer, the investigating officer, if any, appointed pursuant to Article 32 and to all counsel in the case, the convening authority, and, after referral, to the military judge;

(B) That the full report of the board may be released by the board or other medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the convening authority or, after referral of charges, by the military judge, except that a copy of the full report shall be furnished to the defense and, upon request, to the commanding officer of the accused; and

(C) That neither the contents of the full report nor any matter considered by the board during its investigation shall be released by the board or other medical personnel to any person not authorized to receive the full report, except pursuant to an order by the military judge.

Discussion

Based on the report, further action in the case may be suspended, the charges may be dismissed by the convening authority, administrative action may be taken to discharge the accused from the service or, subject to Mil. R. Evid. 302, the charges may be tried by court-martial.

(4) Additional examinations. Additional examinations may be directed under this rule at any stage of the proceedings as circumstances may require.

(5) Disclosure to trial counsel. No person, other than the defense counsel, accused, or, after referral of charges, the military judge may disclose to the trial counsel any statement made by the accused to the board or any evidence derived from such statement.

Discussion

See Mil. R. Evid. 302.

There’s quite a bit there, so let me try to distill it a bit on a more practical scale. Here’s the usual procedure:

  • A sanity board is requested through the convening authority or the military judge.
  • If the defense did not request the board, they are allowed an opportunity to request an amendment to the sanity board order to address their own concerns.
  • A sanity board is ordered or declined.
  • If ordered, it is sent to a military treatment facility’s mental health department to be assigned to a psychologist or psychiatrist. I’ve seen some sanity boards that consisted of only one person. I have also seen ones that involved 2-4. The more serious the charges, the more professionals opine as to mental responsibility.
  • The board reviews the individual’s medical/mental history, the charges, any police reports, and interview the accused in order to ascertain their present and past mental states.
  • They complete two reports. The first merely answers the questions (yes or no) asked in RCM 706(c)(2). This is provided to the government (prosecutors, convening authority). The second report is a detailed account of their process, methodology, findings, interviews, and determinations. It can be as short as a few pages, or it can be exceptionally voluminous. This is ONLY given to the Defense Counsel. Exceptions to this are extremely limited (and likely not to apply in Bales)
  • The long report may need to be disclosed to the government, but only in the event that they intend to rely upon its findings in order to establish a lack of mental responsibility.
  • Total cost to the defense = $0.
  • Defense may request a new sanity board or a reopening of the old sanity board if new evidence or matters are discovered.

There you go. Pretty simple. So, pros and cons?

Pros

  • Free!
  • A detached psychologist or psychiatrist (or several) act as members of the board.
  • They make their decisions in a vacuum. In other words, nobody (defense or otherwise) may influence their process or decision-making-process.
  • The long report is provided only to the defense. If the report sucks (from the perspective of the defense, they can choose to not use it or the members of the sanity board in their defense). If the report is favorable to the defense……well…….then it is favorable. Nothing wrong with something being favorable.
  • Because the team is neutral from the beginning, they make very credible witnesses (if called), unlike your average hired-gun.
  • The prosecution is not privy to the interviews with your client by the board members.
  • The members of the board are occasionally receptive to defense needs.
  • Requests can be made to reopen the board or appoint a new board.

Cons

  • You don’t get to choose the docs. After all, a hired gun will often say what you want them to say, how you want them to say it.
  • You will not know the biases or issues with the assigned psych professionals until after the board is complete.
  • If you choose to use the results of the sanity board at trial, you may need to provide the full results and records to the prosecution. (After all, each affirmative defense comes with an affirmative cost).
  • You aren’t sitting with your client as they are interviewed by the board. You have no idea how much diarrhea of the mouth they may have that day.
  • The members of the sanity board are almost always government employees or members of the military. As such, they might be concerned about their careers and upward mobility.

Now, the defense could hire their own psychologist/psychiatrist. There are a few factors to consider on this one.

  • Costs money.
  • They will likely say what you want them to say. However, they could also be exposed as a hired gun on cross examination. This includes the question “Now, as I understand it you were hired by the defense, but they could have sent this to an impartial sanity board. Right?”
  • Will be countered by a government attorney who is likely not specifically hired to testify.

In this case, the government requested the sanity board from the convening authority. This occurs for two reasons:

  1. They believe that the accused lacks mental responsibility, or
  2. They figured the defense would request it anyway.

More often than not, #2 is the reason for the request, but #1 isn’t out of the question, especially considering what we know about Bales. It is important to know that, even when the government requests the board, the rules on disclosure still apply.

So, in this case, Bales and his attorney have decided to eschew a sanity board.

This is interesting because, in communications with most of my military law buddies (some with as much military law experience as Bales’ attorney has in law experience) out there, the overwhelming thought was to get him a sanity board ASAP.

So, what are the members of the defense thinking? I tried to brainstorm the idea and decided on the following possibilities:

  • They want the sanity board to occur once they receive discovery (because they think the sanity determination will hinge on a piece or pieces of discovery.
  • They believe that the sanity board will not be impartial.
  • They just want to be difficult (as is a tendency with us defense attorneys).
  • They don’t understand the benefit of a sanity board.
  • They think the possible drawbacks are too risky.
  • They think, overwhelmingly, he will be found mentally responsible.

Let’s think about each of these.

I don’t buy the discovery argument. The earlier they get an initial sanity determination, the easier it is to ask for a reopened/new board based on discovery received later in the process. This is a great way to, at a minimum, litter the appellate record with ammunition to be used in the event of an appeal. Also, judge’s tend to be liberal with subsequent sanity board requests. I personally prosecuted a case where the accused repeatedly attempted suicide before his trial. This resulted in 2 delays to allow for reopened sanity boards. If that judge didn’t lose his cool, then I doubt the one eventually assigned to Bales would.

Impartiality. True, the members of the board are going to be government employees (and probably at least one will be an Army officer. However, it will not occur at Joint Base Lewis-Mcchord. It is assigned to Walter Reed Army Medical Center in Washington, DC. This will likely be a team of highly trained psychologists/psychiatrists who have no connection at all to Lewis-Mcchord or the Convening Authority/Prosecutors.

Additionally, the more serious the charges, more professionals tend to be assigned to sanity boards. I wouldn’t be surprised if his board consists of 3-5 professionals, and maybe more. The more professionals, the less the probability of partiality.

Perhaps they just want to be difficult. I’m not above that. However, considering that this has been touted as a case of mental responsibility from the beginning, the chance to prove this assertion should defeat the possible benefits of throwing garbage and trash cans in the way of the prosecution.

Perhaps they don’t understand the nature and benefit of Rule 706 of the Rules for Court-Martial. This is always a possibility since they decided to fire the Major assigned as appointed counsel (an experienced military lawyer by Army standards). At this point, they still maintain the more junior appointed counsel (a Captain), but his ability to contribute meaningfully is questionable considering their treatment of the Major.

There are drawbacks. Every tactic utilized by defense attorneys have drawbacks. It is our job to weigh the pros and cons. In this case, they may perceive that what he would say to a sanity board may be overwhelmingly damning. Even with this, never forget that the detailed report of the board will be given to the defense, and then the defense team can decide whether or not to utilize the results. Either way, if you’re going to try for lack of mental responsibility, you must start somewhere, with professionals. There will always be possible drawbacks. Considering their penchant for sharing everything with the media, I find it strange that they are afraid of something like RCM 706 and its procedural safeguards. This may also segue with the last point.

Perhaps they fear what they know to be the truth. They’ve talked to him, and perhaps they know that he was right as rain the entire time, and any educated psych professional would recognize this. This is the most dangerous thing this team must address, This would render their prior statements as nothing more than bloviation. As with most cases, we must defer to those who are closest to the case (and presumably understand it better than us).

But, its my blog, so I’ll say what I want. I hope they prove me wrong, for SSG Bales’ sake.

Frankly, I’d go with a sanity board early (and possibly even often in this case). I’ve never seen one of these blow-up in the face of defense counsel. However, I’ve only been an attorney for going-on 9 years. They’d probably tell me the same thing they said to his original appointed counsel:

“You are fired, sorry, but we have much more experience than you,” Seattle-based John Henry Browne, the outspoken lawyer who has been the public face of the defense of Staff Sergeant Robert Bales, said in an email to military lawyer Major Thomas Hurley.

Incoming!

April 12, 2012 § 1 Comment

Here we go again, dodging the Google artillery shells as they impact on and around UA. These are just some of the search terms/phrases our esteemed readers used to reach this wonderful oasis of internet excellence.

cow skull bow tie – I’m glad to see that my neighbor is finding me on the tubes.

military porn star – The tease is back. Who? WHO? You must tell me who!

how to stop patent leather shoes from crunching – Leave this blog and never return.

touro law school piece of shit – Not touching this. Not touching this. Ignoring it. Ignoring it.

should lawyers use esq – Only if the self-importance monster needs feeding.

basic training soldier crying – Nowadays, most do.

using esquire to refer to yourself – Seriously, you really are jonesing for some importance, aren’t you?

stolen valor cases eagle scouts – See, I told you that Stolen Valor Act was going to be a slippery slope.

stupid texas – You must be from Massachusetts.

farting law chaponda – Proof that the strongest of convictions often make the worst laws.

sharp cheddar costume – STOP RUBBING IT IN!

do men get their shirts starched – Real ones? Yes.

what kind of uniform do you get from the army – Polyester. Lotsa polyester.

navy wife who is a swinger – Helping to extract the Seamen.

marco randazza army – I heard this too, but he’s never elaborated.

can you call the police for someone falsely wearing the medal of honor – Seriously, just do it. Then write and tell me what happens.

mark bennett contempt attorney – Something you need to tell us, Mark?

i love pink slime – Me too! It helped me grow a second ascending colon.

making your client cry in court – Did it. Because I’m manipulative.

guy tramp stamp – Seriously? Have we really come to this.

boudoir photography legal on army installations – YES! I have a digital camera.

is boudoir photography legal on military installations – I’M OVER HERE! Got my camera and a fuzzy blanket all ready!

is boudoir photos legal on army installations – Don’t make me beg.

am I too old to wear patent leather - The question is “Are you not classy enough to wear patent leather?”

gerry spence imelda marcos no guilty – Imelda, stop googling yourself.

will I make it as a solo atty – Assuming you will soon inherit a large estate from a relative, you enjoy regular ramen meals, and your idea of a groovy automobile is a Nissan Versa, you’ll do just fine.

army porn sex test during selection – If that was available 20 years ago, a friend of mine from college would already be a General.

you is kind you is smart you is important tattoo – Ummm, OK? Thank you?

fuck school I become ninja – Send resume’ immediately. You’re hired.

Azimuth Check: Rise of Cornmolio

April 12, 2012 Comments Off

Just two pieces of brain-matter that oozed out of my ear and onto the keyboard today.

The Rise of Cornmolio

I caught this little guy today. He made himself fat on grubs at the expense of my lawn for several days, but, when you’re a mole in my yard, you’re running on borrowed time.

He was initially caught sans glove, but this bugger’s energy and claws got the best of me a few times, so I went with glove option for the photo.

After having a talk with him about poor yard manners, I realized that he stood for much more than an annoying rodent. He actually has meaning in our country’s legal system, but that topic is saved for another day. Stay tuned.

All That Googling, But No Feres?

I get tons of calls from former service members who want to sue the government for alleged wrongs and injustices inflicted during their time in the military.

Their approach has become routine: “I got screwed and wrongfully (court-martialed, discharged, demoted, etc). Now, I want to sue them for the harm they caused.”

Each scoured the googles, uncovering damning evidence and unbridled support from various message boards, also populated with disgruntled former service members.

They have designs on grabbing a piece of the 100 bzillion dollar defense budget and tucking it away in a CD for themselves and their family (after purchasing an Xbox and F-350 4×4 truck).

To those wonderful folks, I have two things to say:

1. I am not a personal injury attorney. I could’ve helped back when you were “screwed and wrongfully __________”, but not now that you’ve turned this into a personal injury quest.

2. You obviously ignored this during your infinite number of googles, but please go back and read Feres v. United States. The Feres Doctrine should answer a ton of your questions.

Man’s Gotta Have Priorities

April 11, 2012 Comments Off

Today, the following occurred/continued to occur:

  • Korea has a missile thingie and nuclear hopes. The launch window has opened.
  • Iran, not to be outdone by Korea, also talks nuclear hopes.
  • Syria is still doing everything they can to piss-off decent and caring people in the world.
  • Zimmerman is charged with 2nd Degree Murder in Florida.
  • A 7.0 earthquake hits Mexico.
  • A tsunami scare occurs, but luckily no tsunami.
  • We are reminded that California once had a nifty eugenics program that sterilized citizens by force in order to cleanse the gene pool of “feeble-minded individuals.”
  • Stocks rebound.
  • Charles Manson is denied parole, again.
  • Mark Bennett is a real person in the eyes of Texas Election Authorities.
  • Norm Pattis continues to push for the establishment of a KOA Kampground on the New Haven Green. (a truly spiffy example of how we all need to look outside our little niches in the law occasionally to creatively and effectively represent our clients).
  • Connecticut abolishes the death penalty. (Congrats to all you nutmeggy folks).

Yet, check what’s trending on CNN.com:

SCUTR

April 11, 2012 Comments Off

I know these things are no longer all-the-rage, but this poster never ceases to amuse me. Just thought I’d share.

Oh, This Is Getting Interesting…

April 8, 2012 § 8 Comments

Quick lesson before I get to the substance:

When someone faces court-martial charges in the military, they receive a military lawyer at no charge. This is usually a lawyer in the pay grade of O-3 (sometimes O-4).

If the accused chooses to hire civilian counsel, they must pay for the civilian counsel out of their own pocket, but they keep their assigned military lawyer. So, they have the potential of having two for the price of one.

I spent over 2 years as a military counsel, essentially functioning as a military public defender, and I’ve been on the civilian side since that time.

OK, with that out of the way, let’s move to the hot military law topic of the month, the murder case involving SSG Robert Bales.

Latest development: Bales and his civilian attorney have fired military counsel.

This Reuters article is very superficial, but it seems to indicate a great deal of friction between civilian and military counsel. Please read it before proceeding. However, if you’d rather not, here’s the most important passage:

“You are fired, sorry, but we have much more experience than you,” Seattle-based John Henry Browne, the outspoken lawyer who has been the public face of the defense of Staff Sergeant Robert Bales, said in an email to military lawyer Major Thomas Hurley.

Working with other attorneys, particularly ones unknown to you, can be difficult. Ego always plays a role. Philosophy on defending cases also complicates matters. Sometimes, it’s a simple clash of personalities.

I’ve worked with several other attorneys during my time on both sides of the fence. Here are a few of my thoughts concerning a joint military/civilian defense.

  • When the civilian is retained as counsel, they assume the lead role. Unless the client specifies otherwise, this is the assumption. As a military counsel, this was difficult for me because of my history in leadership positions. However, I also knew that a unified defense was best (usually) for my client. In every case, I learned from my more experienced civilian counterpart. As a civilian counsel, part of my representation agreement specifies that I am lead counsel in the case. Any change to that status constitutes a material change in representation and may be grounds for me to withdraw. Now that I’m in a position to pick-and choose my cases, that’s just the way it is.
  • Conflicts between counsel should occur in private, and initially just between counsel. Whenever part of a joint defense, we never argued in front of the client. When we differed, we discussed it privately. Ideally, we’d reach common ground. If not, we’d calmly and professionally present our differing courses of action to the client and allow the client to decide which path he’d rather follow. Hyperbole was strictly forbidden.
  • Our roles were always decided beforehand, and each of us knew our duties, responsibilities, and limits. During initial meetings, we carved-out our roles. The civilian almost always finalizes motions, takes the bigger witnesses, merits opening, and merits closing. Miltary counsel will usually draft motions, take lesser/supporting witnesses, and prepares a sentencing case (if necessary).
  • Publicity was almost always the call of the civilian, but not without gaining the opinion of military counsel. Military counsel cannot approach media unilaterally. They must first get approval from their boss(es). Civilian counsel can independently approach media (after, of course, consulting the client). Again, working together is critical.
  • Someone must check their ego at the door. Preferably, both counsel, but at least one. If ego drives representation, then the client is hurt.

Here, I’m not sure the specifics, but the apparent tone of the email from civilian to military counsel is troubling.

Now, I have a few questions (which will likely never be answered):

  • How the hell does an email between defense counsel become leaked to the press? If it was intentional, then shame on the person who intentionally did it. The concept of hiring/firing counsel should never be public and is not germane to effective representation or public awareness.
  • Did anyone bother to check their ego at the door? The public knows of the ego possessed by Bales’ current civilian counsel. His statement of “we have much more experience than you” is a clear indication. OK, so what about military counsel? Did the Major assigned by the Army to represent Bales appropriately voice his dislike/distrust of the civilian’s chosen public affairs tactics? Did he appropriately discuss this with civilian defense counsel and then calmly and professionally with the client? Ego can kill a defense.
  • As far as military defense counsel goes, Bales’ assigned counsel has oodles of experience. Chances are that they will not find another with his resume’ (particularly in defending murder clients). So, what does civilian counsel think they are going to get? A stool pigeon? I’ve never felt that a compliant attorney helps in a defense.

So, there are my thoughts in about 10 minutes of writing and analysis. I may amend this from time-to-time as ideas pop into my head and information becomes more public.

Note: For what it is worth, I’m probably more aligned with military counsel in this case. As I’ve made clear before, I am very hesitant to take a case public (let alone putting my client’s spouse on the “Today” show). I’m not above it, but I’d rather obtain discovery prior to shooting-off my mouth. Evidently, the biggest rub in this case centered around the (indiscriminate) use of media and publicity. My rule: if I cannot see a clear (repeat: CLEAR) benefit in the overall result of the case (judge or jury), I avoid the media.

Note 2: I am not personally acquainted with any of the actors in this play.

Beginning the End: The Cheese Stands Alone

April 5, 2012 § 9 Comments

Today, I witnessed a first-run performance by the renowned East Elementary School Kindergarten classes. The performance: “The Cheese Stands Alone.”

To make matters worse, I had to suffer behind the bouncing kid in the red shirt.

It is a story of love and loss, heartbreak and redemption. The protagonist: a poor rat, just wanting to be friends with cheese. The antagonist: a stage full of juvenile cheese.

SPOILER ALERT: By the end, through greater understanding and love, the cheese and rat cultivate a friendship and no longer must stand alone.

I’d like to say that the story warmed my heart and made me a better person, but I can’t. In fact, I barely noticed the gist of the story. Why? I was preoccupied with the fact that my child–my offspring–my pride and joy–watched his dreams of future success and renown shatter into a million pieces upon the stage in the elementary cafeteria.

To my horror, I saw that he had been relegated to the role of “Sharp Cheddar.”

Just typing the words causes tears to well in my eyes. The heartbreak I feel is something no parent should ever suffer.

Now, just so you know I’m not “that parent,” I didn’t expect him to rise to the prominent role of “Cheesy,” the flavor-androgenous spokesperson for the mass of cheese. However, I thought he was at least good enough to rank a zesty “Buffalo Mozzarella” or even the more sublime “Brie.” For that matter, I thought he deserved a shot as a standout “Gouda.” Nope, he was put with the ordinary, bottom-refrigerator-shelf Sharp Cheddar.

Why didn’t they just go all the way and nuke his dreams by making him an outcast “Velveeta?” It’s not like it would have crushed me more than they already did with the cheap, “Always Save” brand Sharp Cheddar. I mean, what cheese company doesn’t make sharp cheddar? They all do. It is ordinary. It’s not a specialty cheese, like so many others. You can even order it at “Red Robin,” and Red Robin can go screw themselves and their cheddar-covered burgers, as far as I’m concerned.

I watched as my poor spawn sang the tunes, but they weren’t the upbeat show tunes as intended. Nope. He was singing the blues, and all I heard was a funeral march.

I wanted him to be successful. I wanted him to attend a top-flight college and be a professional. Now, I’ll be lucky to get him a mowing job with the county. So quickly I descended from high hopes to forlorn desperation.

I’ll still be positive. I’ll try to accentuate the positives while other parents look at me with pursed lips, silently pitying my predicament.

Friends a few days ago now avoid me. The conversations are abrupt.

“Hey, I saw Tucker in the play, he did a great job as “Aged Parmesian.”

“Thanks. I saw……..your kid. He looked like he made the most of being Sharp Cheddar.”

“You know, we’re just happy that he tried his best.”

“Sure. It’s all about just trying your best and being a part of the team. That’s what we told Tucker. Hey, we’re sending him to space camp this summer, are you…”

“No, I think we’ll just keep him at home and work on a few things ourselves.”

“You know, that’s probably best. Well, must go. So many exciting opportunities to plan for Tucker.”

They shuffle away as quickly as possible–off with the other space camp parents, even the bitch whose daughter portrayed a happy-go-lucky “Monterrey Jack.”

As I slowly exit the parking lot, I see them all gathered happily near Tucker’s parent’s minivan. When they see me driving away, their smiles fade, replaced by knowing glances to one-another.

My mood turns to anger on the drive.

I won’t’ accept blame for this one. It’s the teacher. The music teacher! She is to blame. She has her favorites. Her little pet Brandon, always getting the perks. I must blame her. In the year 2012, it is the law. Parents and children are immune to blame. Accountability must be focused on teachers, staff, and administrators. They must be held responsible for all shortcomings. They deserve it. They earned it.

We are still hopeful. He might still go to law school. There, he will be magnificent, even if a few bad faculty say otherwise. We know better. Afterward, he’ll deserve the best job possible, with high pay and benefits, and he’ll again be magnificent.

Anything less will be the fault of others–the spoiled and the privileged, and that damned costume with the words “Sharp Cheddar.”

It’s All About Signage

April 4, 2012 Comments Off

I found a sign for the office, and it’s already programmed with my personal settings. How convenient.

Dear Avvo (Again)

April 2, 2012 § 3 Comments

Dear Avvo:

Thanks for considering me.

My short answer is “no.”

My long answer is “hell no.”

Have a wonderful Avvoful day,

Eric

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