Govt. to Defense Counsel: Do your job, but only when we authorize it.

This is a story that has very little traction outside of military law circles, but it should outrage both prosecutors and defense counsel alike.

Imagine that you’re in trouble, and special agents are crawling around, amassing a possible case against you. You wouldn’t just sit on your hands, especially when you know there’s evidence to support your case. You hire a lawyer or assemble a team of defense attorneys to work on your case and perform their own discovery.

If you’re one of the accused’s defense attorneys, you want to get as much information as you can as quickly as possible. In some cases, you might want to share information with special agents, if it is reasonably calculated to help your client. Of course, your client might give you a few leads on potential witnesses (character or otherwise), and you’ll want to talk to these potential witnesses as soon as possible, locking-in their statements and gaining a higher level of understanding in the case. All the while, you act in an ethical manner, zealously representing your client. Gathering information is a necessary (and required) part of the job.

Everyone knows that the preceding two paragraphs are logical and reasonable.

Well, that’s what I once thought. Apparently there are those who think otherwise.

In the Military District of Washington, there are those who believe that defense attorneys should do an investigation into a case, but only when the government says so.

Let’s review a timeline of events, taken from a Petition for Extraordinary Relief filed before the Army Court of Criminal Appeals (ACCA).

  • Feb. 21, 2014, an active-duty Judge Advocate (military lawyer) was suspended from his job as Chief of the Trial Counsel Assistance Program (think-tank designed to help military prosecutors do their job). He was alleged to have committed a sexual assault. This soldier falls under the authority of the Military District of Washington (MDW).
  • Feb. 23, accused officer requested counsel through the Army’s Trial Defense Service (TDS, the Army’s public defenders). He was assigned counsel from Ft. Leavenworth, Kansas.
  • Mar. 4, Army CID (Army’s version of the FBI) requested that the accused officer report for questioning.
  • Apr. 2, Staff Judge Advocate of Military District of Washington called defense counsel. He informed defense counsel that the complaining witness (alleged victim) was upset that defense counsel was probing around and asking questions of various individuals that may or may not be associated with the case. SJA asks that defense counsel cease their investigation.
  • NOTE: Staff Judge Advocate (SJA) in the Army is the senior legal advisor to a commanding general, and the Military District of Washington (MDW) encompasses a variety of military units in the DC area as well as a few elsewhere.
  • NOTE: US Army Trial Defense Service also falls under MDW for command and control purposes. This is done in order to create a stovepipe effect where a TDS lawyer at, say, Ft. Bragg, NC, is able to act independently and not be subject to the authority of local commanders. For this case, however, it creates an interesting situation, considering that all actions come from the MDW.
  • Apr. 3, the Deputy SJA for MDW called defense counsel and stated that SJA is “going to have [their] commander, battalion commander…have  [accused soldier] report in and he is going to issue him basically an order to cease and desist with this investigation.”
  • Apr. 4, defense counsel sent the MDW SJA an email. In that email, defense counsel summarized the acts thus far and explained that orders to limit the proper and ethical investigation conducted by defense counsel is unlawful. Defense counsel also explained that the situation had been briefed to the Chief of the Army’s Trial Defense Services, and the Chief ordered defense counsel to continue to zealously represent their client.
  • Shortly afterward, MDW SJA responded, merely noting defense counsel’s concerns. He further stated that “Any violation of that order will be at [the accused soldier’s] peril.”
  • NOTE: The prior bullet is where you should be saying “What the hell?”
  • Apr. 4, the Battalion Commander for the accused soldier issued an order to the accused soldier. In writing, it stated that the accused soldier is not to “discuss any facet of this case with any witness or potential witness.” It continued (NOTE: Pay very close attention to this one) to say that “this prohibition also applies to any and all third parties, agents, proxies, or attorneys who may act at [accused soldier’s] direction or represent [accused soldier].[emphasis added by me]
  • NOTE: It is now appropriate to say “Holy shit!.” Those of you older than 45 may, as manners permit, shit your pants.
  • RECAP to this point: A senior Army lawyer who is a Colonel just apparently condoned and encouraged a Battalion Commander to issue an order for defense counsel to stop doing their job.
  • Let’s continue…
  • Apr. 8, accused soldier files a request for redress to the Battalion Commander, asking that the commander rescind his order.
  • Apr. 14, Battalion Commander denied, in writing, this request for redress.
  • Apr. 15, Petition for Extraordinary Writ filed with the Army Court of Criminal Appeals. Petition is here and brief in support of petition is here. The brief contains all of the exhibits, to include emails, the written order, etc.
  • Sometime shortly before Apr. 23, the order to cease and desist is withdrawn.
  • Apr. 23, Petition for Extraordinary Writ withdrawn.

This factual sequence creates many questions. Let’s examine a few that come to mind.

1. Did Lieutenant Colonel Mark R. Biehl, the commander of Headquarters Command Battalion for the Military District of Washington act as a lone idiot, or was he acting on direction from legal counsel (the SJA and his Deputy SJA)?

Enclosure 1 to the brief is the memo given to the accused soldier by LTC Biehl. This memo is fairly bland, with no legalese or other indicators that it was written by a military lawyer. That doesn’t mean it wasn’t, but we are looking to see, at this point, whether Biehl was encouraged by JAG to issue this insipid order.

However, scrolling down to Enclosure 2 shows the email chain between Lieutenant Colonel Warren Wells (defense counsel) and the MDW SJA, Colonel Jim Agar. This is where COL Agar states “Any violation of that order will be at his peril.” Such strong language seems to indicate familiarity with the order. If you read the portion written by LTC Wells, you will see that he makes COL Agar fully aware of the fallacies and legal problems with the proposed order.

Further, Enclosure 3 is a transcript from a voicemail message left by MDW Deputy SJA, Lieutenant Colonel Paul Golden. Considering that he works closely with the MDW SJA. This gives more indication that they are aware of the intimate details of the order.

Now, go all the way to Enclosure 10. This is LTC Biehl’s response to the accused soldier asking for redress (requesting that the order be lifted). Look at the way it is written. Does that appear that it was written by a non-lawyer Battalion Commander? He cites case law and does a decent job with bluebook citations. I seriously doubt that LTC Biehl wrote that memo.

All of this considered, I find it extremely doubtful that the MDW SJA, Deputy SJA, and perhaps a few others in their office did not fully understand the nature and scope of the order.

2. But, shouldn’t the accused soldier not go around talking to witnesses and or the complaining witnesses?

True, to an extent. Orders preventing such behavior are often given, but they are very narrow in scope and never address actions by defense counsel.

For these orders to be legal, they must be very narrowly tailored and specific. The most common is a no-contact order preventing the accused from having contact with the complaining witness. No problem. This is where defense lawyers enter and conduct their investigation.

3. Why did they do this?

I don’t have the answer. I merely have suspicions. After all, knowing that such an order is inappropriate and illegal is a skill learned in the first year of law school. For it to be condoned by several seasoned military lawyers is baffling to me.

Suspicion 1: Congress is all up in the military’s underwear about sexual assault. The pressure to obtain convictions is high. Every acquittal and/or refusal to prosecute results in more hours of congressional testimony. Commanders feel the pressure. Military lawyers feel the pressure. The higher you are in rank, the more pressure they feel.

Suspicion 2: Defense counsel was kicking the government’s ass in the early stages of investigation. It is uncontroverted that defense counsel was acting both zealously and ethically in doing so. Prosecutors hate when defense counsel is one step ahead of them–let alone several miles as in this case.

The Army’s Trial Defense Service has a swagger about it. They walk into courtrooms expecting to win. This makes those on the government side of things more and more desperate.

Suspicion 3: The overwhelming drive to accommodate alleged victims in the military.

The brief begins very poignantly:

In this case, the government has taken the extraordinary action of ordering the Petitioner and his assigned Trial Defense Service counsel to cease and desist in engaging in any investigation of the allegations against Petitioner, without a factual predicate of malfeasance, and simply at the behest of the purported victim.


Finally, let’s be clear. There is no good reason or excuse for threatening to punish a person accused of a crime because their lawyer acts appropriately and zealously on their behalf. Equally, it is never excusable to act in a manner calculated to impair or stop proper defense investigations. There is never a good reason for this. Never. Ever.

There never will be, either.

4. What are my thoughts?

Aside from the commentary above, I think two things, not that they really matter.

First, it makes me sad.

The MDW SJA was my last boss in the Army. At the time, he was the Regional Defense Counsel for the region in which I served as a Senior Defense Counsel. He was a great boss and very encouraging and supportive to me. He demanded that all defense counsel be zealous in representation and do everything ethically permissible to defend our clients.

I owe him a lot. He was a valued mentor.

Knowing that, I don’t understand how all this could have happened. Even now, I remain hopeful that he was somehow not fully aware of all the circumstances. Unfortunately, the evidence suggests otherwise.

Second, I love to see zealous and bright defense counsel go to work on a case. Here, Captain Justin Barnes, Major Frank Kostik, Lieutenant Colonel Warren Wells, Lieutenant Colonel Jonathan Potter, and Lieutenant Colonel Peter Kageleiry showed that some of the best lawyers are in the Army JAG Corps. They deserve recognition for working quickly and reacting deftly in filing the Petition for Extraordinary Relief. In this case, we have a soldier who is getting and will continue to get a top-notch defense.

Well done, gentlemen.


H/T to CAAFlog and a few others who are appreciated but will remain anonymous.


2 thoughts on “Govt. to Defense Counsel: Do your job, but only when we authorize it.

  1. It’s not often I get to say this, but there’s a great and relevant opinion from the Texas Court of Criminal Appeals in response to a trial judge removing counsel in a capital case because they had the audacity to interview the state’s key witness. (Did I mention that the witness was staying at the prosecutor’s home?)

    Stearnes v. Clinton, 780 S.W.2d 216 (1989).,240

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