The most awesome thing in the history of ever

You’re alive at the most awesome, amazing, inspiring time in the history of the universe. Ever.

How do you know?

Consider…

Toilet paper roll holder, plus

iPad stand, plus

bidet.

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.

Screenshot 2014-03-19 22.06.53

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An Interesting Sinclair Possibility

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.

A Few Notes on Sinclair Sentencing

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.

UPDATE:

Looks like he was sentenced to a fine of $20K. That fits closely to what he would have received under nonjudicial punishment.

Sinclair Update (And Translations)

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.

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.

 

It Keeps Getting Uglier

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

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.

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]