Sinclair Update (And Translations)

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.

 

In which I realize the shortcomings of my marketing plan.

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.

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Update. Video below added in response to Turk and Tannebaum’s comments.

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Update 2. Oh for crying out loud.

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Update 3. No more updates after this. You can search youtube just as easily as me.

 

It Keeps Getting Uglier

March 7, 2014 § 4 Comments

Just when you think it couldn’t possibly get worse

A lieutenant colonel who supervises sexual assault prosecution in the Army is under investigation for allegedly sexually assaulting a female colleague, sources have confirmed.

Lt. Col. Joseph “Jay” Morse has been suspended from his job as chief of the Trial Counsel Assistance Program at Fort Belvoir, Va., “pending the outcome of the investigation,” an Army spokesman confirmed via email on Thursday.

The source could not, however, elaborate on the allegations.

“Given that this is still an open case, we are precluded from providing additional information at this point,” the spokesman said.

What on earth is going on with our folks in uniform?

Not Fit To Drive a Car

March 5, 2014 § Leave a comment

I never quite know how to react when I hear that a lawyer has experienced/is experiencing a mental breakdown during legal proceedings.

Via the Fayetteville Observer:

The former lead prosecutor in the sexual assault court-martial of Fort Bragg Brig. Gen. Jeff Sinclair appeared irrational and suicidal less than a month before the trial, and at times broke down in tears because of the stress of the case, a witness testified at a pretrial hearing Tuesday.

“I’ve never seen a human being so stripped of logic and rationality,” said Brig. Gen. Paul Wilson, the former staff judge advocate for Fort Bragg and the 18th Airborne Corps, who saw Lt. Col. Will Helixon two days before he quit the case.

“He was absolutely not fit for any kind of duty. I wouldn’t trust him to drive a car” that day, Wilson said.

My personal opinion of LTC Helixon, based on my interactions and observations of him will not be discussed here (or in any other post, for that matter). However, it is certainly illuminating when one of only 3 Brigadier Generals in the Army JAG Corps states (in court, under oath) that he wouldn’t trust you to drive a car because of your mental state.

This made me think about lawyers who find themselves stressed to the point that they can no longer effectively practice law.

Some lawyers operate in the proverbial vacuum. They are alone with their cases, with their only support network being the other voices inside their head. When one of these individuals finds themselves in the midst of a breakdown, I do sympathize. For most, it is a matter of not knowing the appropriate time to force themselves to seek outside help. Though, their obligation as a lawyer extends to knowing when they are incapable of fully performing their required duties.

Those who do not work in a vacuum are a bit more fortunate in this regard. The practice of law is stressful. Nobody doubts that, but it is far easier to endure with an office full of water-cooler-comrades, capable and often willing to let you vent, seek advice, and give support. They are also capable of letting you know when you need to get help or take time away from the law. The Army JAG Corps is one of those places.

If you are an Army defense counsel, you have the handful of other defense counsel in your office (normally a very tight-knit group) along with other DCs at installations within your region (usually 20-40). As if that weren’t enough, a centralized think-tank exists to support any and all DC efforts–the Defense Counsel Assistance Program (DCAP). It is, in my opinion, the best place to be a defense attorney.

Military prosecutors (called Trial Counsel) are no different. In addition to their peers and paralegals in the local office (which is always larger than the defense shop), their supervisory chain, and the chain of command. They also have their own central support via the Trial Counsel Assistance Program.

If you walk into the average court-martial, you’ll see Captains representing the parties (sometimes you’ll see Majors or higher, but those cases are exceptions, not the rule). Most have 2-6 years of experience as a lawyer. For instance, I had 9 months experience as a lawyer when I became the Trial Counsel for the 4th Brigade, 10th Mountain Division. When I became a Defense Counsel, I’d been a member of the bar for 4 years. I think I’m relatively average, which was fine because support was always there for me. Thankfully.

The support my peers and I received was phenomenal. I give most credit to our leadership. The most important thing they did was emphasize keeping our cases and our duties in perspective. They stressed the concept of backwards planning, maintaining a healthy balance in our lives, and keeping good accountability of our cases, tasks, and suspenses. Most importantly, they instructed us to consult them if we ever found ourselves overwhelmed. I know of a few who did this, and all received the help necessary to move their cases forward successfully.

Knowing this, I saw, as both a subordinate and a supervisor, that lawyer stress resulted from one of a few things.

1. Poor time management.

2. Poor calendar management.

3. Poor case management.

4. Poor management of personal affairs.

5. Ethical mishaps (usually starting as a small white lie that snowballs over time).

All of these are relatively self-explanatory and are easy to diagnose and critique, unless, of course, you’re the poor sap who finds yourself in the midst of one of these problems.

Having said that, I’m going to make what, to some, is a controversial statement. Here goes:

If you can’t manage yourself or your practice, you have no business representing clients.

I remember an occasion as a law student intern where I observed a preliminary hearing. The defense lawyer, a morbidly obese man, entered the courtroom, waddled to counsel table, and squeezed himself down between the armrests on the chair. Sweat flowed, and his labored breathing was the loudest sound in the room. It took him several minutes to compose himself, finally culminating with him straining to lean far enough to place his briefcase on the floor.

To nobody’s surprise, his shoes were slip-on.

I wondered, as a young, wide-eyed law student, “Where is his focus right now?” Was it on his client, or was he consumed with offering prayers that his heart would continue to provide blood to mounds and mounds of redundant protoplasm? Meanwhile, opposing counsel, a young, fit prosecutor, sat calmly at his table with files neatly arranged–focused. It didn’t take a law degree to know who was more mentally ready for that day’s hearing.

That story doesn’t need to be about a morbidly obese lawyer. It could just as easily be about an alcoholic whose mind was more in a bottle than in a courtroom. Or someone whose poor time management causes them to stress more about the deadlines they failed to calendar than the motion they’ll soon be litigating. Or a guy whose day is filled with dread that the check he wrote for the rent is going to bounce. None are truly fit to practice law. Clients deserve a lawyer who is focused on their case. 100%.

There are those who will label me as an asshole for this, and, if you ask those who know me, that assumption is correct. They’ll say that everyone has problems now and then, and we should be sympathetic and helpful. I agree. We all have problems. We all need help once in awhile. We should support those in our profession who need help. You’re right.

However, during that time, they are not fit to practice law. Not because they have a problem, but because the problems cause them to focus more on themselves than those they are sworn to assist. Our duty mandates that we represent our clients to the utmost, but it also requires that we be able to identify when we are incapable of doing the same.

 

Longing for the day I can choke someone through the phone.

March 3, 2014 § 5 Comments

I think most lawyers with more than a few years in practice have experienced it.

You finished with a case. It didn’t end terribly well for your client, but you did everything you could do. In essence, you fought until the bitter end, exhausting all reasonable courses of action.

Yet, the client persists. They want to take this to the highest possible summit—the Supreme Court, the Hague, the Municipal Court of Mayor McCheese. I understand their enthusiasm and passion. It is their life. I’m just not going to follow them past the reasonableness line of demarcation.

You explain to the client that they’d be wasting their money, efforts, and time to do so. It is over. You wanted better for them, but it’s just over. They need to adjust their life and move onward and, hopefully, upward.

Some accept this advice with a handshake and heartfelt thanks. Others accuse you of being stock footage for the term “Dipshit.”

It happens. We’re accustomed, and satisfaction comes from knowing we did everything we could that was reasonably calculated to provide a shot at success.

Then, a few months pass. The phone rings.

Me: Hello.

Other Lawyer (OL): Hey, this is ______________ from __________, ______________, ___________. and ____________. I work with the [super special big federal appeals thingamajigger]. I’m considering taking the case of [former client] pro bono.

Me: OK.

OL: Well, it just seems like ___________ was totally deprived of due process, and I don’t think a federal court is going to take kindly to what the government did to him.

Me: OK.

OL: It just seems like he was totally deprived of due process. I mean, they didn’t do _________, __________. or _____________, and [this continues for what seems like ages]. [He cites cases he handled that are not related to the agency in which the the current case arises.]

Me: OK.

OL: Well, don’t you agree that [5 minutes pass as OL describes his ultimate opinion of due process].

Me: If you asking me if I think due process is important, my answer is yes.

OL: Well, don’t you agree that he was deprived of [repeats list of perceived due process violations]?

Me: It wasn’t the prettiest proceeding, but they followed procedure as far as I can tell, and we even succeeded in having ___________ and ______________ thrown-out. As for my complete thoughts on his case, they are all contained in the last written submission I made in his final appeal.

OL: I looked through your written submission, and it was very good. But……ummmm……..Well, I have [a bzillion] years of experience doing [a practice area not related to the one in which this case falls], and I served as a [big, fancy-sounding title] and even won a case against [rattles-off a string of names that I guess is a big, powerful firm in NYC]. I used to work with [rattles-off names of what, I assume are big rainmaker types].

Me: OK.

OL: And, based on [a crushing amount of experience in an area not related to my practice area], I think he has a great case.

Me: Well, I’m just a small time guy, I have never been a [big, fancy-sounding title], nor will I ever be. I also have never been in federal district court, and all my cases are small-time compared to you. However, I disagree with your assessment.

OL: Well, don’t you think [rehash of all the brilliant hypotheses he believes will score an overwhelming victory in federal court].

Me: Well, you’ve got all the experience there. I’ll defer to you.

OL: Look, I’m just trying to see if this case is worth my time and money to take pro bono.

Me: OK.

OL: Well, I don’t think I’m going to take it pro bono, but he can hire me.

Me: OK.

OL: Thanks for your time and insight.

[click]

Selfies Gone Wrong: The Tariqka Sheffey Story

February 28, 2014 § 8 Comments

Let’s review the saga of Private First Class Tariqka Sheffey. I learned of her via the Army Times.

But, before we do, here’s a lesson on military customs and courtesy. On military installations, the US flag is raised every morning (usually at 6 or 7). This is called reveille, and it is usually accompanied by a specific bugle call and a shot from a cannon. It signifies the beginning of the day. At 5PM, the flag is lowered. This denotes the end of the day and is called retreat, and another distinct bugle call and cannon shot occurs.

At those times, members of the armed forces are supposed to stop and render a salute. If the individual is driving, they are supposed to safely stop their vehicle, exit it, and render appropriate courtesy. This applies even if the individual is in civilian clothes, though there is some debate as to whether a salute should be rendered in civilian clothes or a substituted hand over the heart. Most individuals I know render a salute regardless of attire. Most civilians also abide by this tradition, myself included. It can be inconvenient, but I do so out of respect for both tradition and those who have, at some point, served in uniform.

If you are inside a building, you are exempt from this pause to honor the start/end of the duty day. However, cars do not count as buildings.

These customs and courtesies are known to anyone who completes basic training.

I’ve seen plenty of soldiers duck inside of a building in order to avoid this requirement. It is an immature display that is generally dismissed as youthful idiocy and misplaced priorities that will soon be replaced by some form of learned maturity.  If caught, an on-the-spot correction is usually given in dramatic fashion by sergeants who catch such respect-dodging.

I’ve never seen someone brag about it, because to do so is in the poorest of taste. Even an 18 year old private knows that.

This brings us to PFC Tariqka Sheffey. Not only did she hide in her car to avoid retreat honors, but she posted a photo of her glorious act of civil disobedience on instagram. Given the attention she devotes to it, it must have been the hallmark of her day. Here it is.

Screenshot 2014-02-28 12.44.25

It is a bit unclear in this pic, but the caption says “This is me laying back in my car hiding so I don’t have to salute the 1700 [5PM] flag, KEEP ALL YOUR “THATS SO DISRESPECTFUL/HOW RUDE/ETC.” COMMENTS TO YOURSELF [hand symbol] cuz, right now, IDGAFFFFF.” On another note, 303 likes ain’t shabby.

 

Most acts like this (those that do not utilize social media) result in some sort of instant, non-enduring punishment given by a noncommissioned officer. It is usually in the form of pushups or an uncomfortable verbal admonishment. A correction in behavior is made, and the situation is then left and forgotten.

For PFC Sheffey, the effects look to last a bit longer than normal. Here are a few things to keep in mind:

  • This is likely a violation of the Uniform Code of Military Justice. If anything, it can fit under Article 134 which criminalizes anything that either is prejudicial to good order and discipline or brings discredit upon the armed forces. Could her conduct be stretched into other violations? Sure. In particular, Fort Carson may have a policy letter ordering customs and courtesy at retreat, which would make her guilty of willfully failing to follow a lawful order. However, absent that, anything else would be an unnecessary stretch.
  • I think most would agree that her conduct is prejudicial to good order and discipline.
  • Was her conduct service discrediting? Just google “Tariqka Sheffey,” and the answer will become very, very clear.
  • Could she go to jail? Yes, but that’s not realistic. Don’t be fooled by media outlets that like to scare you with maximum punishment rhetoric. At worst, I see this being a case that is settled with nonjudicial punishment, which could result in a loss of rank, loss of pay, extra duty, and restriction. I’d be surprised if this goes as far as confinement.
  • Then again, since SDGAFFFFF, perhaps she will tempt fate by declining nonjudicial punishment and demanding a court-martial (as is her right). In that case, I suspect the command in Colorado will be happy to oblige.
  • Her use of IDGAFFFFF is not helpful to her case. Not at all. In fact, it may be the most damaging piece of evidence.
  • Because SDGAFFFFF, her command may decide that they don’t want soldiers who DGAFFFFF. In that case, they could process her for administrative separation. Though, I think this largely depends on whether she has a history of marginal or poor behavior and the quality of her work to this point.

Note: Does anyone know what IDGAFFFFF means? I know what IDGAFF means, but anything more than 2 F’s throws me for a loop.

Finally, this is yet another cautionary tale about the perils of social media. It seems there may be third-order effects not anticipated by PFC Sheffey. Via the Army Times:

Less than 24 hours after the story posted, new Instagram accounts were created bearing Sheffey’s image. These posts included even more controversial photos — one of a burning flag. The flag burning was posted on an Instagram account “teriqkasheffey,” which misspells the soldier’s first name. Another account used her photo, but misspelled her name differently: “teriqasheffy.” That post included a number of expletives including “f— the flag” and “f— the army.”

Many people assumed these were more posts from the PFC. But a Fort Carson official said it is likely these are posers who are looking to incite more outrage online.

It is “strongly believed that there are copycats posing as her, using some of her info to post more nonsense,” the official said.

One thing is absolutely sure. She now knows of the tangled and messy web that can be woven on the interwebz.

From Video to Charge Sheet: A Cautionary Tale

January 14, 2014 § 1 Comment

Suppose you are absent without authorization from the Army. That’s a military crime, punishable by a healthy stay in prison and a punitive discharge, depending on the severity and particular form of the absence.

Let’s review a few helpful hints in your situation:

(NOTE: Don’t rely upon this advice. They are general helpful hints and are a poor substitute for advice given by a lawyer who knows and understands your specific case. If you’re really in this situation, call a military lawyer as soon as possible. Start with your branch’s trial defense service.)

  • Staying gone for, say, 7 or 8 years, is a bad thing.
  • Making statements about the absence will not help.
  • Videotaping those statements really will not help.
  • Making up a story about multiple combat deployments and self-sacrifice when you served for only a few months (and all but a few days of it was in basic/initial training) and having a local news outlet put it on video constitutes thermonuclear self-destruction.

Knowing this, let’s see what’s up over at The News Tribune out of Tacoma, Washington.

A one-time Fort Lewis soldier who trumped up his military experience in a TV interview last year is facing time in prison on charges that he deserted his unit and falsely claimed to be a combat veteran.

Kevin Shakely of Sacramento, Calif., allegedly evaded law enforcement agencies for seven years, once reportedly slipping through their grasp at SeaTac Airport.

When Army police started raising pressure on him in August, Shakely, 28, contacted Sacramento’s KTXL Fox 40 News and claimed he was an honorably discharged Iraq and Afghanistan veteran being harassed by the Army.

“This is not how you treat somebody that went through what I had to go through and made the sacrifices I had to make,” he told KTXL.

If the military is harassing a combat veteran who was honorably discharged, that’s a bad thing. Let’s read a bit further.

Shakely in fact spent less than six months in uniform before deserting. Army records show he completed his initial training and spent just six days at his first duty station – Fort Lewis, before its reorganization as Joint Base Lewis-McChord.

Well, that’s not helpful. Neither is the video. (You must click on the link because I can’t get it to embed here.)

This individual’s court-martial is already scheduled. From what the article implies, he agreed to plead guilty to some or all of the charges in exchange for a limit on the sentence.

Why am I talking about this story? Well, a while back, I talked about the fact that veterans are pretty good at naming and shaming those who tout false military service. The veterans over at This Ain’t Hell were all over this case, with posts here and here. If you click around, you’ll see that they use service record requests to debunk claims made by questionable individuals. Just one example of what happens when determined and capable veterans can do to self-police those who claim something they are not. Particularly illuminating is their stolen valor page.