April 17, 2014 § 1 Comment
If you grew-up like me, it was tradition for the high school senior class to take a “senior skip day” prior to graduation. Tomorrow is #63′s day.
In due course, he asked that I inform the school that he is “sick.” Well, I’m certainly not going to lie for him. After all, I’m an officer of the court. My integrity is vitally important to my professional status.
So, I was honest. See for yourself.
Dear Dr. (Principal):
My son will not be attending school today. He is mentally unable to perform to the minimum standards expected of members of the student body. He also has the sniffles, or something.
I started to type that he has the clap, but then he got all huffy and told me to delete it. So I did. Now that he is 18, such jokes are no longer as taboo as they were when he was at the tender age of 17, but I digress.
You see, my son is a millennial–also referred-to as Generation Y. In business and professional circles, they are widely regarded as the most worthless and self-entitled generation to inhabit the earth since Adam and Eve got weird about fruit. They’ve devised a technique for avoiding work and effort. They call it a “mental health day,” and it is widely used to confuse supervisors into believing that an absence is medically necessary. Knowing this, I think the most accurate way to describe today’s absence may be to use the GenY “mental health day” terminology.
Then again, it may be easier for your record-keeping to just call it the sniffles.
Either way works for me. All I ask is that he please be excused due to his “illness.” Believe me, it is in the best interests of your institution that he not attend today.
Please share this with his teachers, as I know they will be extremely concerned about his wellbeing.
April 17, 2014 § 1 Comment
Every lawyer in private practice has conducted this call within 5 minutes of hanging a shingle.
Lawyer (L): Hello?
Potential Client (Not Really) (PCNR): Yes, are you a lawyer?
L: Yes! I am! (stated with oodles of nauseating enthusiasm)
PCNR: I’ve got this situation. (explains situation in gory, irrelevant detail)
L: Wow. OK, well, the way I see it… (lawyer proceeds to give away all his knowledge in an in-depth analysis of all gory, irrelevant details)
PCNR: OK, so… (asks question after question after question after question (ad nauseum))
L: (Answers questions, because wants to have clients and help them)
PCNR: This is great!
L: I’d love to take your case, my fee is (any dollar amount from $5 to whatever).
PCNR: Well, you’ve given me a lot to think about. I have your number right here.
And on this basis, the call ends.
30-60 minutes of professional life spent with nothing to show for it. You do, however, have the satisfaction of knowing that you’ve given someone much to think upon, and that your number is right there.
Young lawyers gain experience, and these calls go from 30-60 minutes to less than 1 minute. We develop skills to control the conversation from the get-go, dissecting the most important points, and sending quickly-identified lookie-loos on their way.
I had one of these calls just the other day and dispatched it in 34.62 seconds. As I sat back, prideful of my learned expedience, I realized that maybe I’m missing the bigger issue.
These potentials were actually sending a very strong message. They needed help in a legal niche that has never been tapped. They need a lawyer to give them something to think about. As both an entrepreneur and lawyer, an idea popped into my head.
Eric: Specializing in Giving You Something To Think About
Brilliant! You know it’s brilliant. Admit it to yourself.
Forget hours hunched over an appeal. Put away those suits you wear to the courthouse. Rid yourself of pesky depositions.
From the comfort of my home, I endeavor to provide thousands with the legal help they really need, but no lawyer was wiling or able to give.
Something to think about.
But, hey, I gotta pay the rent. How to do this? The answer is as clear as the niche.
Competitive, a la carte, tiered pricing.
Here’s how it works:
Level A: Something to think about regarding the specifics of your legal issue. This is detailed. All facts are considered, no matter how minute or insignificant. Talk as long as you want. I’ll give you everything I know. Fee: $1000 for the first hour, $750 for each additional hour, with an additional $2500 if you cause me to become suicidal + any actual costs arising from institutionalization.
Level B: Something to think about: generally pertinent to the ultimate consequences of your legal issue. Time is limited on this one, and not all facts are considered, but we’ll get you into the ballpark. Examples include: “You should totally plead not guilty” or “Settle this one for $5000″ or “You’re probably looking at 4-6 years in jail” or “Have you ever considered residing in Ecuador?” Fee: $500
Level C: Something to think about: Whether to hire a lawyer or not. From very basic facts, we give you one of two answers. Answer 1: You should hire a lawyer. Answer 2: You probably can get away with not hiring a lawyer. Fee: $250
Level D: Something to think about: Screwed? You’re given 20 seconds to tell me as much as possible. Then, I reply with “Dude, you’re screwed” or “I don’t think you’re screwed, yet” or “You totally screwed him/her/it.” I then hang up. Fee: $50.
Level E: Just something to think about. I call you. You are not allowed to talk. I give you something to think about. What I say might be relevant to your legal matter, but only by sheer dumb luck. Examples include “Which Muppet are you attracted to, and what does that say about you?” or “Why do farts smell completely different when they originate in water?” The call ends immediately after I give you something to think about. Fee: $10.
There you go. No need to tell me that I’ve given you something to think about. As the national expert/specialist in such matters, I know all about my skillz.
Yes, I will accept credit cards, goods-in-kind, and bitcoin.
So, next time you need something to think about, give me a buzz. I’m the lawyer for you.
And I’ll let you keep my number right there. For free.
March 19, 2014 § 2 Comments
You’re alive at the most awesome, amazing, inspiring time in the history of the universe. Ever.
How do you know?
Toilet paper roll holder, plus
iPad stand, plus
Mankind has finally done it. We’re there. Pat yourselves on the back. Then, buy your Biffy BUTTLER here for the low price of $119.95.
March 19, 2014 § 5 Comments
Usually, a Dishonorable Discharge (or Dismissal for officers) is reserved for the most severe of crimes–murder, rape, robbery, burglary, aggravated assault, and the like.
Now, I’m just brainstorming out loud, but… The judge could, in lieu of a reprimand, forfeiture of pay, and/or confinement, simply award a dismissal.
In order to impose this, he’d need to decide as follows:
1. Sinclair’s crimes warrant the attachment of significant stigma. After all, the primary purpose of a punitive discharge/dismissal is to stigmatize a person.
2. Sinclair’s behavior makes him unworthy of further benefits (VA, retirement, or otherwise). His crimes outweigh the good aspects of his prior service.
3. General deterrence is the most important sentencing factor.
4. He is incapable/unworthy of rehabilitation.
I do think this is a longshot, but, if the government pushes the case for how this case can/should be a wakeup call for all senior leaders, it certainly is plausible.
I had a prior case where a court-martial panel (jury) determined that, while jail would not do anything for the Army or my client, his actions deserved nothing more than what a Bad-Conduct Discharge would allow. So, it wouldn’t be completely absurd to see a sentence of only a dismissal.
March 19, 2014 Comments Off
Naturally, the Fayetteville Observer (Fayetteville is the town immediately outside the gates of Ft. Bragg, is all over the trial of Brigadier General Jeffrey Sinclair. They give a decent summary of yesterday’s sentencing proceeding, albeit a bit scattershot. Here are a few clarifications.
1. What’s up with Sinclair’s wife not appearing to testify on his behalf at sentencing? What’s with the letter she wrote?
There are a variety of reasons for why she is shying-away from this one. One is the reason given–that she wants to stay at home and focus on their children. This is understandable.
Another reason, though not given, is that she’s had enough of this crap, most of which he brought upon himself. In her letter, she did explain that she has not fully forgiven him for his actions, so there is still a bit of angst present (justifiably). Imagine how you would feel knowing that your spouse was unfaithful, and then you’re asked to testify under oath and be subject to cross examination. Though, I’ve seen it done many times.
Would it help if she testified? Based on my experience, it absolutely would. An argument I’ve frequently used in cases similar to this and after spouse testimony is “If you’re thinking of further punishment, consider the fact that he has already been punished and will continue to be punished by the person most hurt by his actions.”
So, the second issue is with the letter. In lieu of testifying, Sinclair’s wife wrote a letter to the court. Defense counsel wants to introduce the wife’s letter for sentencing consideration. He can do so. All he has to do is ask that the judge relax the rules of evidence during the sentencing case (this is specifically allowed in the rules for court-martial). At that point, anything relevant to sentencing factors can be submitted for consideration. This is routinely done at court-martial and typically is in the form of a notebook filled with documents that shows that the accused is worthy of a second chance, a lighter sentence, or a combination of the two.
So, why doesn’t defense counsel just ask that the judge relax the rules in order to easily submit her letter? Well, the relaxing of evidentiary rules also applies to the prosecution, and they can rebut anything submitted by the defense in their extenuation and mitigation case by taking advantage of relaxed rules. This can be disastrous if the prosecution has an ace up their sleeve that is otherwise inadmissible under the rules.
So, this leads me to believe that there is a very specific reason why defense counsel does not want to relax the rules.
2. While I still believe that chances of confinement are remote, my position is not as strong as before.
Yesterday, I was pretty confident that confinement would not be part of an adjudged sentence. Now, I’m not as sure as before. It appears that part of the aggravation includes strong evidence of abuse of power and even a hint of fraud and waste. Consider this (the accuser referenced here is the female Captain who initially accused Sinclair of sexual assault, but who also accused him of engaging in an inappropriate and adulterous relationship):
Col. Michelle Schmidt was the accuser’s supervisor in the 82nd Airborne Division during an Afghanistan deployment in late 2011 and early 2012. She said the accuser was assigned to work closely with Sinclair temporarily, for two months, to help him connect with Afghan leaders early in the deployment.
The accuser was distraught that she had to work for Sinclair and wanted to be brought back to her primary job in military intelligence, Schmidt said. But Sinclair wouldn’t let her go despite her efforts to get away from him, and she continued working for him after the two months ended, Schmidt said.
Schmidt said she had to adjust her military intelligence staff to cover the captain’s duties.
Lt. Col. Ben Bigelow, who worked with Sinclair and the captain in Iraq and Germany had heard rumors of a relationship in spring 2009, but said Sinclair denied them. According to other testimony, the sexual relationship began in summer 2009.
In 2010, Bigelow said, at a going-away party and roast for Sinclair before his transfer to Fort Bragg, a skit about Sinclair and the captain offended people. A male soldier wearing a brown wig and woman’s clothing portrayed the captain kneeling in front of another soldier portraying Sinclair. The soldier dressed in women’s clothes made insinuations about performing a sexual act, Bigelow said.
About 600 people were in attendance, including Sinclair’s and Bigelow’s wives.
Audience members “had their mouths open and clearly in my observation were shocked, angered and dismayed” by what they saw, Bigelow said.
Sinclair has admitted to attempting to make a date with a lieutenant at Fort Bragg when he was on leave from Afghanistan.
The lieutenant testified that she had to cancel because of her work schedule, and regardless, “something didn’t seem right” about his desire to see her.
Looks like he was sentenced to a fine of $20K. That fits closely to what he would have received under nonjudicial punishment.
March 17, 2014 § 1 Comment
The NY Times has been all over the prosecution of Brigadier General Jeffrey Sinclair. Some has been great reporting. Some has been blatant hyperbole. Most of it is informative.
One of the problems with journalists reporting on military matters is that they often get some of the facts discombobulated because of their lack of understanding of the system. The same thing happens when journalists report on criminal proceedings. Precise terms of art are confused, thus confusing issues overall.
There are a few things that they conveyed fairly well. First, this case is a big hot mess. From the beginnings rumblings indicated that the complaining witness (alleged victim) had integrity problems from a court-martial standpoint. As we drew closer to trial, more was discovered that the defense team could and would use to devastatingly impeach her credibility. Second, the unlawful command influence angle created a nearly impenetrable and smelly marsh in the proceedings. Thanks to the recent attention given by congress, politicians, and vocal victim advocates, defense counsel have a few new cards to play (and they have been doing so with aplomb).
Note: Credit is absolutely owed to the defense counsel/organizations from the several services. They’ve leveraged the recent advocacy on behalf of victims and congressional posturing in a way that benefits their defenses and secures acquittals (or makes them much more likely than in years past). It is fun to see my old comrades in Trial Defense walking into the courtroom with such a hard-earned swagger.
Let me explain a few things that were mentioned in the article.
1. He’s going to jail, right?
Is jail possible? Yes. Is it likely? No.
Sinclair agreed to plead guilty to the lesser charges. This includes misusing a government charge card, disobeying an order (I assume this to be the digital pornography stuff), and adultery. The government agrees not to pursue the big charges related to sexual assault.
Note: The guilty please he entered earlier last week are still valid, so this deal ensures that he pleads guilty to all or most of the lesser charged offenses.
Were it not for the sexual assault charges, Sinclair would not be facing court-martial. Instead, it would have been handled through administrative and nonjudicial punishment means. When this all started, I remarked to a friend that I’d attempt to have the lesser charges adjudicated through nonjudicial punishment, thereby making the court-martial one that only addressed only the sexual assault. It has been done before, and it tends to benefit both sides, as they can both address the charges that merit a court-martial.
One of the things I detest is when someone is found not guilty of a greater charge, but guilty of a lesser one (ones) that, taken alone, would have been adjudicated in a forum that would not impose a criminal conviction. A good example of this is adultery. Taken alone, it is worthy of an administrative punishment that, at worst, results in the loss of money (and possibly rank for junior enlisted personnel) and a likely end to one’s military career. However, is is often a lesser charge added to many allegations of sexual assault. This is a textbook example of a time when I’ll try to get the government to allow nonjudicial punishment for the lesser charge in exchange for it being removed from the court-martial charges. Then, if he is found guilty of the greater charge at trial, the government can present the results of nonjudicial punishment to show aggravation.
Don’t take this as me second-guessing the Sinclair defense team. I presume his attorney considered this and, through talks with his client and negotiations with the government, decided to proceed with a guilty plea at court-martial for the lesser offenses. Given what they know, this may be the best outcome.
Knowing this, is he likely to see Ft. Leavenworth soon? I doubt it. If I were a betting man (which I am), I’d bet on a reprimand and a fairly stiff forfeiture of pay. That’s what would happen if the lesser charges were taken alone.
Though, this case has already been a train wreck. So, expect the unexpected. It was reported that one of the lesser charges was maltreatment of a subordinate, which is the one that might warrant stiffer penalties, depending on how the judge sees it. As the NYT explains:
In that portion of the plea document, General Sinclair admits that he treated the captain “in a manner which when viewed objectively under all the circumstances was unwarranted, unjustified and unnecessary and reasonably could have caused mental harm or suffering during the course of an ongoing inappropriate sexual relationship.”
2. Will he be a registered sex offender?
Nope. Those charges are now off the table.
3. No loss of rank? What?
The article mentions the following:
Defense lawyers say General Sinclair is willing to retire as a lieutenant colonel — two rungs below his current rank, and the last rank that he served during which he is not accused of any illegal acts — which would probably cost him more than $1 million in total retirement pay.
NYT dangles this carrot, but fails to explain it.
Let me explain.
The court-martial cannot reduce an officer in rank. This is because of the nature of a commission (he is a commissioned officer) and some strange legal nuances. So, he’ll retire a Brigadier General, right?
Not so fast, my friends.
First, I do think he will be allowed to retire. The lesser charges simply aren’t enough to warrant a Dismissal (equivalent to a Dishonorable Discharge). In fact, that may be a provision of the plea agreement.
When an officer retires from the Army, they face the possibility of a Grade Determination Review Board if any negative information is found in their military files. In this case, plenty of information will be placed in his file to include the conviction record and probably a letter of reprimand that explains the charges and the who, what, when, where, and how. Evidently, the allegations go back to a point when BG Sinclair was Colonel Sinclair. This is important.
The Grade Determination Review Board is tasked with one thing. They must decide the rank that an officer last held honorably.
Here’s an example: Lieutenant Colonel X is retiring. He, a married man, has a letter of reprimand for having an adulterous relationship (consensual) with a married female. This happened while he was a Lieutenant Colonel. The board will review his file, read the letter, and decide whether they believe he held the rank of Lieutenant Colonel honorably. Generally, the board will decide that he did not. Then, they look at his records while he was a Major (one level below Lieutenant Colonel). If they find no negative or dishonorable information, they will decide he can retire at the grade of Major, because it is the rank he last held honorably.
In this case, it appears information will soon exist in Sinclair’s official records to show that he committed misconduct while both a Colonel and a Brigadier General, making Lieutenant Colonel the last rank he held honorably.
Depending on his lifespan, this loss of rank could cost him millions.
At the same time, I know plenty of people who are happily retired as Lieutenant Colonels, having served successfully and without incident. But, that’s another story.
4. Evidence in Aggravation?
Sentencing in military courts is like a trial unto itself. Prosecutors present witnesses and evidence in aggravation. Defense counsel presents evidence in extenuation and mitigation.
What does the prosecution have? Guilty plea and probably a stipulation of fact where the General admits to some of the embarrassing and harsh truths of the charges to which he pleaded guilty.
What does the defense have? The guy was in the military a long time. Plenty of evidence exists to show that he is bright and capable. Do not confuse this as a defense. Much has been made of the perceived abolishment of the “good soldier defense.” This is sentencing, defenses do not apply, and it is perfectly valid in both extenuation and mitigation.
Will the prosecution call the complaining witness to testify? I doubt it. Once she takes the stand, even during the sentencing phase, her character trait of truthfulness is at issue. Defense counsel will, undoubtedly, cross examine her in a way that discredits any facts she may offer as aggravation.
5. Who are the big winners?
I don’t know that there are any. Sinclair’s name and career are in the toilet. The prosecution and command have looked like buffoons who cave to political pressure from congress rather than adopting a determination to seek “justice.”
The defense team showed dogged determination and able lawyering. They are probably the biggest winners. Lead counsel takes a lot of credit, but I think more is owed to the fact that they assembled a very capable team.
March 13, 2014 § 13 Comments
So, I looks up this guy because he is being sued by Judge Judy. I heard that the suit involves his using her image for promotional purposes. I was curious, as it was making headlines today.
I wasn’t expecting what I found. However, most of you probably already saw this, as I’m usually the last one to find such things.
Now, having seen this video, I suspect Judge Judy is just miffed at not being asked to be a Haymond Girl.
I also realize that lawyer marketing knows no bounds. None. At all.
Update. Video below added in response to Turk and Tannebaum’s comments.
Update 2. Oh for crying out loud.
Update 3. No more updates after this. You can search youtube just as easily as me.