Today’s Legal Deathmatch: Bellerophon Jami Tillotson vs. Chimera Police Inspector Brian Stansbury

Today’s hero of UA probably never wanted the spotlight, as she quietly and professional performed her duties today as a Public Defender in San Francisco. However, she has it, and it’s a good thing.

In short, thank you, Jami Tillotson. You responded perfectly in every way. You have our respect. Permanently. You’re a hero.

Of course, for every Bellerophon, there must be a Chimera.

That honor goes to POS Police Inspector Brian Stansbury, who directed that Jami be arrested because she acted to protect her client’s rights. He cited “resisting arrest” as Jami’s dastardly party foul, despite the fact that he was not conducting an arrest.

So, let’s break this down:  Nobody was under arrest, until somebody resisted a nonexistent arrest. Clearly, this rule was devised by Dean Vernon Wormer.

OK, OK. We realize that the “resisting arrest” statute in CA is a bit broader than most realize. Fine. Was Jami behaving in a way that obstructed Stansbury from performing his duties? Sure. That’s what attorneys like Jami are supposed and sworn to do.

If you don’t believe me (and you probably should not), just watch the tape. (Below)

As an aside, I commend everyone on Jami’s team for the way they behaved in this tape. I would’ve been louder, and, potentially, much more…….. Well, let’s just say I’m a bit more of a hot-head.

As another aside, what was Stansbury waiting for? A glamor shot? Why didn’t he just snap a picture? But I digress.

So, let me be much more succinct about my opinion of San Francisco Police Inspector Brian Stansbury.

San Francisco Police Inspector Brian Stansbury is an idiot.

San Francisco Police Inspector Brian Stansbury does not know or understand the law. Therefore, he isn’t competent to do the job the people pay him to perform. If he does understand the law, he blatantly ignored it for his personal benefit and pleasure, thus actually betraying those he is sworn to protect.

San Francisco Police Inspector Brian Stansbury should not be allowed to walk away from this situation professionally unscathed.

San Francisco Police Inspector Brian Stansbury does not deserve the trust or respect of the people of San Francisco.

“Justice” (per my skewed definition of it) is best served by sentencing San Francisco Police Inspector Brian Stansbury to be chained to a witness chair and subjected to a cross-examination train run by every member of the SF PD Office and Defense Bar. For a police officer, there’s no lower circle of hell.


Mailbag: Soliciting Creative Responses

Let’s reach into the mailbag:

Dear Eric:

I have a solo practice, and that means that I answer my own phone on most days. Something has been happening on a regular basis that really makes me angry.

I’ll answer the phone, and a potential client will begin to tell me about his/her case. They usually want to tell a long story, but I always try to focus them on what I need to know in order to provide them with a good estimate of legal fees. Most of the time, after hearing my fee, they either try to milk the conversation for as much info as I will give them, or they exit the call.

Before hanging up, they will ask “Now, what was your name?” I’m always shocked by this, as they are the ones who called me! None of them ever call back. I feel like I should answer this question in a decisive, yet creative way.

Any suggestions?

With genuine legal love,

Penelope in Paxico


Dear Penelope:

Let me break this down for you.

First, as a solo with no clients, answer the phone all you want. After all, what else are you doing with your time? This provides you with an opportunity to practice your phone skills.

After you earn your first client, stop acting as your own receptionist. No, really. Stop it. It will pull you away from the person/people who deserve your time the most. As you’ve probably already learned, the calls will come awkwardly, and most will have the subconscious goal of sucking as much information out of your brain as possible. Only your clients deserve the information in your brain. After all, they value what you know. That’s why they pay you.

Either pay someone to answer your phone or let voicemail receive the calls and return them at a predetermined time when you will not be pulled away from the people whom you owe your time.

As to your final question, welcome to the private practice of law. You’ll get calls from all types. Nice types. Fraudulent types. Angry types. Scared types. Delusional types. Flirty types. Normal types. Crazy types. Lots and lots of crazy types. Some will overcome the barriers you establish and try to pry information from your brain for no compensation. They don’t care who you are. They just want info.

Let me say this again: They don’t care who you are. They just want info. This means they see paying you for anything as a waste of money. They’d rather pay for a subscription to a low-budget adult website. You’re just a warm body who (presumably) owns a suit. That’s it.

So, do you really need cathartic relief that badly? Do you really need to reply to them in some way that conveys your feelings of disgust? Is it really worth it?

I say just give them your name and wish them good day. The sooner you end the conversation, the sooner you can move forward with the rest of your life. Creating hard feelings gains you nothing–even the moment of catharsis is fleeting.

Yours extremely platonically,



Note to everyone else: Can you think of a witty (and ethical) way to respond to the “What was your name again” callers? If so, put your idea in the comments below.

Adventures in Potential Clients, 6 January 2015

Picture, if you will…

A conversation just occurred (in reality, it happened months (and perhaps years) ago) in which I gleaned the most important aspects of the potential case: the general issues presented, proper venue, and time/travel/expenses necessary to effect representation. Fees are explained, including fees for consultations. 15 minutes have been spent on the phone.

Potential Client: But, don’t you want to know more about my case?

Me: You already told me everything I need at this point. I know the gist of your case and what we generally need to do. If you’d like a consultation, I’d be happy to arrange the paperwork and payment methods.

Potential Client: But, can I talk to you more about it?

Me: If we have a signed representation or consultation agreement and settle payment, we can talk at length about all the details. Plus, I will ensure the consultation occurs on my schedule when enough time exists for a thorough discussion of your case.

Potential Client: But, what about now?

Me: This isn’t a good time. I assume you want to think a bit more about whether you want to hire counsel.

Potential Client: I want to talk to you about my case.

Me: I don’t think I’m the right lawyer for you.

Call Log: It’ll save your ass.

There are many tips for young lawyers floating around out there. Some are great. Some suck. This is one of the former.

Keep a log of all calls. Make it as detailed as possible. Take time after each call to review what you wrote. It should be a notebook or other “analog” means. Digital logs can be great, but they often take time to access and set up. Availability is the key. Function is more important than form. Never throw it away.

Why am I saying this? Mine just saved my ass twice today.

How much is a half hour worth to you?

Depending on my pending cases, I travel a moderate to high amount during the week. Most of the time, the travel time is spent accumulating frequent flier points with Southwest. However, despite the number of free flights I earn, I do not like to fly. I don’t like the TSA, and I hate the feeling of my sinuses preparing to burst.

When possible, I always opt for rail travel. Most of the time, this is constrained to the eastern seaboard and occasional trips to Chicago. It is convenient, and I like the opportunity to perform uninterrupted work during the trip. While I occasionally use regional services, Amtrak usually gets my business.

However, something has been bugging me about Amtrak. This is their Acela Express service. For those of you who do not know, the Acela is the US’ only high speed rail service. With speeds up to 140 mph, it promises quick and comfortable service between Washington and Boston.

Notice that 140 mph number? That’s fast, especially compared to its analog counterpart, the Northeast Regional, which averages about half the speed with its traditional diesel/electric configuration.

However, that’s not how it shakes-out in reality.

Just for fun, I’m going to plan a 1-way trip from Washington to New York City on December 16. I’ll use “value” based fares. That way, I’m comparing apples to apples on lowest available fares. I’ll also plan to leave around the same time, choosing trains that leave between 9AM and 11AM.

Here’s what I found:

Train 1: Acela, 2 hours, 45 mins, cost: $184

Train 2: Northeast Regional, 3 hr, 20 mins, cost: $86

Train 3: Acela, 2h, 46m, $158

Train 4: Northeast Regional, 3h, 24m, $86

Train 5: Acela, 2h, 50m, $158

Looking further through the day, I note that the NE Regional lower fare remains at $86, while the Acela has a low of $158 and occasionally spikes into the $200s during peak times.

To be fair, the lowest class on Acela is “Business Class.” There are no seats classified as “Coach” on the high speed service. To upgrade to “Business Class” on the NE Regional, you will need to pay $130. However, for purposes here, I’m comparing the lowest available to lowest available.

Looking at the sample provided, NE Regional trains take approximately 3 hours, 22 minutes to make the trek from DC to NYC. The Acela takes approximately 2 hours, 47 minutes for the same trek. This, is an average time savings of 35 minutes, but that savings will cost, at a minimum, $72.

Here are my takeaways:

I do not believe the savings in time is worth $2.06 per minute.

For a train capable of nearly twice the speed of its analog counterpart, a mere 18% savings on time is not worth paying 184% more in fare.

Trial Techniques: First, We Piss Off the Judge

One day before a motions hearing, I sit my client down for a chat about strategy.

“OK, so, tomorrow, I’m going to make this motion, but the judge probably won’t like it. After listening to each side, he’ll probably rule in favor of the prosecutors,” I begin.

“So, what do we do then,” client inquires.

“Well, that’s when I’ll make the same motion again. Except, I’ll act miffed.”

“You’ll act miffed?”

“Yes,” I respond. “I’ll get a little red in the face and ask for reconsideration, restating everything that I already stated.”

“OK, then what will the judge do?”

“Well, he’ll rule against us again, but that’s when the fun starts.”

“Oh?” stammers the client.

“Yep, then I’ll get pissed. I’ll make the motion again. The judge will try to say something, but I’ll talk over him, stating why his conclusion is wrong and why we should win.”

“Will that work?”

“Well, the judge will be pissed at this point, but I’ll keep hammering away at him. Expect me to raise my voice significantly, maybe even screaming, yelling, smacking the table, and tossing paperwork and pens. I might even accuse the judge of ruling against us because of your ethnic background. Then, I’ll top it off by demanding that he recuse himself, simultaneously removing my jacket and tie for dramatic effect.”


“Yeah, where he quits as the judge and another judge is appointed to your case.”

“Will that happen?”

“No, probably not, mainly because it is me that’s kicking up the stink, not him.”

“So, what is all of this going to do for me?” he finally inquires.

“It will show you that I’m working hard and earning my fee.”


I’ve never understood the purpose of arguing like this with the judge. I’m not talking about tacit disagreement while ensuring that all facts and arguments are reasonably articulated for the appellate record. I’m talking about all-out courtroom battles with the judge that result in nothing but ill-will and the judge firmly entrenching himself into his decisions.

Some lawyers see such skirmishes as points of pride, notching a record of each into the leather of their briefcase. Later, they brag about their brush with contempt of court.

I never understood this for one reason, summarized in a question. What does this do for the client?

Sometimes, we take chances in an effort to score a big win for a client. These are usually calculated. In doing so, we weigh the pros, cons, and possible outcomes in order to derive the best course of action. I get that.

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

B. State Reason

C. Listen to other side

D. Clarify reason in light of what other side said.

E. Go back and forth until judge directs a halt.

F. Listen to ruling from judge.

G1: If the ruling is in your favor. SHUT UP.

G2: If the ruling is not in your favor, ask for reconsideration based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.

At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.

Maybe it is because the attorney is passionate. You know how I feel about this. Let me summarize. If you’re passionate about your case and/or client, you ain’t capable of being an effective lawyer for them.

Maybe it is because the lawyer thinks this is the right thing to do because of what they’ve seen on TV or heard in exaggerated war stories told at the bar. This person desperately needs a mentor.

Maybe it is because the lawyer wants to show that they are working hard for the fee they charged. In this case, I feel sorry for the client. It’s going to be a bumpy ride.


H/T this by Jamison Koehler and various by SHG

Azimuth Check: Giving You the Willies When You’re Well-Off

It’s October–Halloween time. Time to give you the willies.

“I just gave the copy a wet Willy.”Compass

Let’s just get straight to the story, via the Mankato Free Press.

Armed with two freshly licked fingers, a former Kiester man home on leave from the Air Force thought it would be funny to give the officer the Willies. Riley Louis Swearingen, 24, of Goldsboro, N.C., was getting on the “drunk bus” after the downtown bars closed early Saturday morning when he allegedly licked a finger on each hand and stuck them into the ears of a police sergeant.

The officer was not amused and Swearingen was immediately arrested, said Cmdr. Jeremy Clifton of the Mankato Department of Public Safety. The sergeant was on the bus talking to the driver when Swearingen boarded at about 2:20 a.m. After feeling two fingers “wet with saliva being pushed into his right and left ear canals, which caused pressure and discomfort,” the officer turned around to see Swearingen walking away.

Swearingen then sat down with a group of friends and said, “I just gave the cop a wet Willy” the officer reported.


I’ll start with my most trivial concern.

Why is “Willy” capitalized in this article? Why not also the word “wet?” These things are important to me.

Next concern is with the charging. Nobody would ever charge a drunk idiot, with no other intent than trying to be funny, with a felony, right? This is clearly, at worst, a case of first degree dipshittery, punishable by a bit of pepper spray and then we call it a day. (Normally, I wouldn’t condone random use of pepper spray by law enforcement as summary punishment, but the more primitive side of me thinks it to be closer to quit pro quo than a permanent criminal record.)

No matter, I’m sure they aren’t going to charge the kid with a felony. That would be really harsh considering his intent and the fact that he was, after all, getting on the “drunk bus” and his later BAC of .18.

Swearingen was still in jail Monday afternoon awaiting a court appearance after prosecutors charged him with a felony for assaulting a police officer with bodily fluids. That is the worst charge that was requested by the officer, who didn’t go through any testing to see if he might have been infected by the saliva that was left in his ears as a result of the double wet Willy. Lesser charges of fifth-degree assault and disruptive intoxication were also filed by the Blue Earth County attorney’s office.

Um. OK. I see. Well, as soon as he sobered, I’m sure they released him to face whatever consequences on another day. After all, no reasonable public policy is served by keeping him in jail.

When Swearingen appeared before District Court Judge Kurt Johnson at about 4 p.m. Monday, he explained what happened. He said he had flown to Minnesota from North Carolina because he was supposed to be in a friend’s wedding Saturday night.

OK, wrong again. In case that snippet didn’t make it clear, he was held from 2AM-ish on Saturday through to late afternoon on Monday, more than two days. He also missed his buddy’s wedding, which was his purpose for taking leave.

But, I’m sure they are going to see the totality of what happened and realize that a few days in jail (with a probable hangover, no less), missing his buddy’s wedding, and all the second and third order effects will be enough to move him along after having clearly learned a valuable lesson.

“I thought it would be incredibly funny to give a police officer a wet Willy, to which I was sorely mistaken,” Swearingen explained. “I’m incredibly sorry for what I did. I never thought I would be going to jail for the weekend.”

Johnson offered to dismiss the assault charges if Swearingen would agree to plead guilty to the misdemeanor charge of disruptive intoxication. That would allow the airman to get out of jail and return to his duties in North Carolina as an air traffic controller at Seymour Johnson Air Force Base in Goldsboro.

Swearingen quickly agreed to the deal. He was sentenced to the three days he spent in jail and was told to pay $77 in court costs.


I’m wrong again.

Let me explain my biggest problem with this.

This statement by Judge Johnson has a lot of problems “That would allow the airman to get out of jail and return to his duties in North Carolina as an air traffic controller at Seymour Johnson Air Force Base in Goldsboro.

You see, the is not just going to get to go back to his duties. Because of what happened, he is likely facing, at a minimum, adverse administrative actions by his chain of command due to the fact that they tend to not smile upon acts of first degree dipshittery. In fact, the Air Force tends to take a much harsher stance against such things, especially among air traffic controllers who they expect to be individuals that exercise good judgment at all times. Now that he has a conviction, his security clearance must be re-assessed, and he may not be considered fit to serve in his current specialty, even if he is lucky enough to keep a clearance.

In short, the Air Force doesn’t really like keeping kids who have convictions, even misdemeanor ones.

Dear Judge Johnson, this isn’t the end for this kid. It is just the beginning. To think that he gets to just go back to his Air Force duties is naive, at best. Potentially, you just sentenced this kid to losing his job in the Air Force, an adverse discharge, and a lifetime of stigma with a less than honorable discharge and your oh-so-lienient conviction.

Does he deserve all of that? I don’t think so. I think a bit of pepper spray, some pain and discomfort, and a hangover at a wedding the following day would’ve been just enough.

Are You Well-Off?

Apparently, my definition of “well-off” isn’t the same as many of my potential clients.

As loyal readers of this blawg (all 23 of you) know, I keep track of trends involving potential clients. Many are amusing.

Here’s one that appeared in just the last year or so.

A potential client calls the office and states that they want to clean up part of their military record. During the conversation, they state something akin to “Now that I’m well-off, I want to take care of this thing.”

So, when I hear “well-off,” I picture someone who lives in a stable household with reliable transportation, steady income, means to provide all the “needs,” and the ability to afford most “wants.” I tend not to think of it in a metaphysical sense that might apply to a person whose content heart feels “well-off” by living in simple joy with their family as squatters in a tent in the middle of an abandoned amusement park in Jasper, Arkansas.

I think my view of “well-off,” as a more materialistic quantification, is the popular and accepted view.

A few months ago, I had one of these “well-off” folks call the office, but his case wasn’t particularly complex. I felt I could handle it in a fairly short amount of time. So, I quoted $500 as a fee. My experience is that this is a fairly low legal fee, relative to most. However, it was fair and would’ve compensated me for my time.

The response was, generally, as follows.

“Whoa, well, I’m going to need a few months to gather those funds. Can I call you back after I get my tax refund in February?”

Sure. You do that.

So, what should you learn from this?

Never hold your breath for a call back from well-off potential clients.

Azimuth Check: Wow! That Person Has Medals!

I’ve been meaning to write this post for several days now. They stem from a few choice headlines from the August 28 Early Bird (a daily digest of military-related news, published by the Military Times). Most days, I scroll through the headlines without seeing much of note. On that particular day, there were several headlines that caught my eye.

Where to begin…Compass

Pursue, Or Else

The former commanding general of US Army Japan will retire as a 1-star general after the Secretary of the Army determined that he did not satisfactorily perform in the rank of Major General (2-star).


“Maj. Gen. Harrison was investigated and disciplined for failing to properly address a sexual assault allegation in his command,” the release states.

OK. Got it. What this essentially means is that he probably received a letter of reprimand (placed in his official records) along with a bad performance report when he was relieved of his command under these circumstances. These matters were reviewed by the Grade Determination Review Board once he applied for retirement, and those findings were affirmed by the Secretary of the Army. It happens.

Here’s what is troubling to me: What constitutes “failing to properly address a sexual assault allegation?”

If the evidence, on its face, is absolutely clear, then that seems easy. However, most allegations are not that easy. My experience tells me that many allegations of sexual assault are accompanied by bad facts and evidence. Reasonable doubt is abundant, and to take the case to trial would be a waste of time and resources, not to mention the unnecessary and unfruitful stress and discomfort placed upon the complaining witness. Assuming that the complaining witness is, in fact, the victim of a sexual assault, prosecuting a case that is doomed to fail, based on the assessment of competent and experienced prosecutors, does more harm than good.

Here’s the problem with punishing, publicly, a leader for “failing to properly address a sexual assault allegation.” It will cause most to err on the side of prosecuting any and all allegations. The only people who benefit from this are defense attorneys who get to pad their stats. That’s already happening, as any military defense attorney will tell you.

Am I saying that the general was right? Nope. I don’t know all the facts, and, to my knowledge, no specifics of the alleged assault have been published. My problem is with the general principle and its foliow-on effects, which, in the end, don’t help actual victims or good order and discipline.

The Mystery of the 7-foot-tall Sergeant

Evidently, evaluation reports (the primary tool for determining whether sergeants are promoted) are being fudged a bit.

A recent promotion board tasked with examining the files of first sergeants and master sergeants came upon a stunning realization: Not only were senior NCOs gaining weight to an alarming degree, they were miraculously getting taller.

So either these senior noncommissioned officers had all experienced latent growth spurts, or there was some funny business going on with the height stats.

The promotion board concluded the latter, and issued a rare and candid smackdown in its after-action report.

Not only did the board call out the E-8 population for having “too many overweight soldiers in the zone of consideration,” but they also called for accountability of raters and senior raters tasked with filling out the NCO Evaluation Reports.

In its report, the board stressed that raters must correctly annotate soldiers’ height and weight data.

“As soldiers gain weight over time, they often, according to their NCOERs, grow in height” so they will be in compliance with Army’s weight control regulation, according to the Regular Army Sergeant Major Selection, Training and Promotion board that met in June. It was easy for the board to suss out potential cheaters by simply comparing the height in the NCOER with Enlisted Record Briefs and Academic Evaluation Reports.

They can’t be serious. So, what they are saying is that there is systematic lying, exaggerating, and puffery in evaluation reports?

I’m glad they realized something in 2014 that everyone else knew decades ago. Nice of them to catch-up with the general population.

As I stroll around various military installations in various places, I never cease to be amazed at the size of today’s soldiers, especially senior Noncommissioned Officers. In many cases, I had no idea that uniforms were made in sizes adequate enough to accommodate these hulking masses of redundant protoplasm.

Oh, and lest I be mistaken, I’m not talking about the gym rats whose pounds are comprised of muscles upon muscles. I’m talking about those who, when asked, state that they began to experience a gland problem after a recent trip to the Joint Readiness Training Center or whose treatment for PTSD involves the inhalation of 25,000 calories from carbohydrates every day.

Back to evaluation reports. The bottom line is that, as long as such reports exist, raters will seek ways to puff-up and protect those who they like. That’s just life.

Are You Serious? She Earned Medals?!

In a very tragic and sad story, a Sergeant First Class at Fort Lee, Virginia entered her place of work and killed herself with a firearm. This is sad. Absolutely tragic.

As with any horrifying tragedy, they are always followed with at least one stupendously ignorant Associated Press news article. For this one, the fine folks at AP were definitely on their toes with the following headline:

“Soldier who shot self at base had earned medals.”

Shocking. Shocking. Shocking.

Let’s dig deeper.

A soldier who barricaded herself in a building at a Virginia base and then fatally shot herself in the head earlier this week was a 33-year-old human resources specialist who had earned Army commendation and good conduct medals in the past, the Army said Wednesday.

OK, could they be a bit more specific?

The Army says her awards and decorations include three Army Commendation Medals, four Army Achievement Medals, one Joint Meritorious Unit Award and four Army Good Conduct Medals.

Let’s break this down.

First, the deceased NCO was a Sergeant First Class (SFC) with almost 14 years of service. This is important to know as we look at each of the medals.

Good Conduct Medal (GCM): If a soldier serves for 3 years without any adverse disciplinary action, they get a Good Conduct Medal. Given the fact that she was promoted to Sergeant First Class and has 4 GCMs, this means she behaved herself for at least 12 of her 14 years. Should anyone who earns a GCM be proud? Sure. However, it is not important or noteworthy to this tragedy. In fact, it merely makes her akin to most SFCs in the Army.

Army Commendation Medal (ARCOM) and Army Achievement Medal (AAM). Most Soldiers earn one of these two awards every two years (on average). They are given when a soldier moves to a new duty station, changes duty assignments, and are occasionally given to recognize singularly commendable actions or events. So, most SFC’s have a handful of AAMs and 2 or 3 ARCOMs. Therefore, again, her having these medals is not noteworthy, significant, or illustrative of anything important related to the tragedy.

Joint Meritorious Unit Award. This means she was assigned to an Army unit when that particular unit was given this award for (usually) overseas service. Most individuals who have been deployed to Iraq or Afghanistan have been assigned to units given this (or one of the other) unit awards. She served overseas, as is the case with, arguably, a majority of SFCs in the Army. So, knowing my conclusions from the first two sets of medals, you know what I’m going to say about this one.

Am I trying to take away from this tragedy or her career as a Noncommissioned Officer? No. It is horrible and sad, and she certainly accomplished good things during her career. However, it is shameful that the AP is making people dumber with such insipid, irrelevant articles. They should just amend the headline to say:

“Soldier who shot self at base was known for wearing an Army uniform, occasionally.”

Stop AP. Just stop.


That Day When I Offended a Potential Client

This is a tale of two conversations.

Conversation 1

Me: Hello?

Potential Client (PC): I just have a few questions… (A few questions ensue.)

Me: (Answers questions. Somewhat. Well, not really. I didn’t give away the bank. I didn’t even reveal the cashier.)

PC: Thanks. This has been really helpful.


Three weeks pass…

Conversation 2

Me: Hello?

PC: Hi, this is (name) calling you back.

Me: OK

PC: We talked a few days ago.

Me: (Flipping through call log.) Oh, you called me three weeks ago. You said (short summary of case).

PC: Yes! That’s me!

Me: What’s up?

PC: So, have you been thinking about my case? I’d like to know your thoughts.

Me: Hahahahahahahahahahahahaha.

PC: (Offended)

An Afternoon With Sharp Cheddar

During an afternoon out with Sharp Cheddar (for an understanding of who Sharp Cheddar is, read this first), who is now a precocious 8 years old, the following conversation occurred:

Me: How ’bout we go to 5 Guys Burgers and Fries?

Sharp Cheddar (SC): That sounds like a place where fat people eat.

Me: What?

SC: It sounds like a place where fat people go to eat.

Me: Where do you get this from?

SC: It just sounds that way.

Me: But how do you get that from 5 Gu…

SC: That’s just how it sounds.

Me: Well, they have really good burgers.

SC: So, I’m right that fat people go there?

Me: I didn’t say that. Non-fat people eat good food, too. And it really isn’t nice to talk about overweight people like this.

SC: I’m tired of this conversation.

(Pause as we drive the the final few miles to 5 Guys)

SC: See, there’s a police car there.

Me: What?

SC: I told you this place was for fat people. A police car is here.

Me: What does that have to do wi….

SC: Usually they like donuts, though.


SC: Calm down, dad. (Looks around.) Hey, some soldiers are going in there. I feel safer now. Let’s eat.

Me: …

Azimuth Check: Lawyer or Lawyer*

It’s been a while. I know. Such is life when you are maintaining a practice whilst packing house and home and moving to a new place. At one point, I decided to abandon Unwashed Advocate. I do this once a year, mostly during summer months. This decision is celebrated by me. It sure feels good to tell your blawg to go to hell.Compass

Then, I return.

After writing brief after brief, appeal after appeal, it is nice to write something that contains your voice. Here, I don’t worry about using passive voice or botching citations. That’s nice.

So, what’ve I been thinking of this summer? Let’s check my direction and see…

Lawyer or Lawyer*

I love talking to other lawyers. I hate talking to other lawyers.

During one of those conversations where, while listening to the other lawyer drone on and on about what she thinks about the legal profession and other lawyers and how other women dress in court and contemplating my suicide plans if she doesn’t soon execute a Kopfian STFU…


She mentioned a particular legal case and remarked “I could never handle cases like that.”

“Huh?” I intelligently replied.

“I SAID I could never do cases like that.”

“Oh, so you’re an asterisk lawyer.”

“What did you just call me?” she retorted.

“I SAID you are an asterisk lawyer. You’re a lawyer, but only when the case or conflict supports and strokes your delicate sensibilities.”

“Are you saying…?”

“Yep,” I cut in, “deal with it. It’s just the type of lawyer you are.”

Knowing me, she got over it quickly, but it reminded me of something I’ve noticed for the last 10ish years.

There are a lot of asterisk lawyers out there.

First, a definition. An asterisk lawyer is a lawyer who is willing to zealously represent some. However, they are completely incapable of representing others.

Here are examples of lawyers*.

“I could never represent a man accused of sexual assault.”

“I could never represent big business.”

“I could never represent a terrorist.”

“I could never take a case representing the tobacco industry.”

“I could never prosecute…”

“I could never defend THOSE people…”

Do not confuse this with the following, which is not a lawyer*.

“I limit my practice to only scrotum husbandry cases.”

That last example is merely someone who limits their practice in order to be very good at one niche. That isn’t saying that they are flatly incapable of representing a particular side, client, or subject.

Lawyers* should be forthcoming about their limitations. Hence, the “*.” At the bottom of their bio, there should be the caveat that quantifies the *, like:

*Except men accused of sexual assault. They should all be emasculated once charges are filed.

*Except terrorists, who should be summarily executed.

*Except big businesses, who are just looking to screw the little guy. Having said that, I can’t wait to upgrade my iPhone and trade-up for the newest, loaded GM vehicle.

*Except the tobacco industry, because cigarettes kill, and that makes me sad and tearful.

Just as I don’t appreciate passionate lawyers, I similarly do not appreciate lawyers*.

A while ago, I started a case with a new co-counsel. They were relatively new to the legal profession but were generally enthusiastic about learning and perfecting the craft. The conversation started something like this:

“Eric, what part of the defense do you want me to work on?”

“None,” I replied.


“I want you to focus on prosecuting the case,” I stated.

Confused, they confirmed “You want me to prosecute the case?”

“Yep, and I want you to be flawless.”

Through the ensuing conversation, I explained myself. I wanted them to determine the most dangerous, horrible, loathsome, and damning things that could be done to us by the opposition and play the role throughout our preparations. Without that, our case was just flapping around aimlessly. I concluded the conversation as follows:

“And, when you do it, I want you to love it.”

I love what I do. Really. However, I could prosecute. I could represent a big, nasty, unfeeling, odious corporation. I could represent a nonprofit, and I could represent a party seeking to destroy a nonprofit. I would take on a client who committed (allegedly, of course) horrible, loathsome acts that would shock the conscience of the average person.

Our job as lawyers is to advocate for a particular perspective as part of an adversarial system. We don’t have to accept the perspective of our client into our own hearts. In fact, it is probably best that we not accept it. We fight for the case we are given, not the case that matches our delicate sensibilities. A lawyer can represent any client in any matter under any conditions. That’s what we are trained to do.

That’s what I want to see in a lawyer. That’s what I want to hire. That’s what I want as a co-counsel.

Everyone else is just a lawyer*.

Dunkin Donuts in the Afternoon

A few habits really say something about a person. Here are two examples.

Example 1: A person who drinks bourbon in the morning.

Example 2: A person who eats donuts after 2PM.

Today, I received an email saying that I could get a sweet discount on donuts after 2PM. Therefore, I plan to be one of those mentioned in the second example.

Why not Colby?

This is not about what we practice. It is about where we practice. Though, the two are often inextricably intertwined.

Yesterday, I enjoyed making fun of North Dakota with a few friends. I like this because, while I’m also from a sparsely populated state, I can always revel in the fact that folks in ND will always have it worse than me.

Statistical Tidbit: North Dakota population: 699,628. Kansas population: 2.886 million. Number of votes for Mark Bennett in his bid as a Libertarian for a seat on the Texas Court of Criminal Appeals: 1.326 million.

This got me thinking about where lawyers choose to live and work.

Some lawyers want to work in huge cities. New York. Washington. Boston. Philly. Chicago. Houston. San Francisco. Miami. Los Angeles. And the like.

Others prefer the smaller, yet significant cities like Oklahoma City, Fresno, Portland, Charlotte, Richmond, Kansas City, etc.

Others of us go for something…..well…..less substantial. I’m one of these.

I want to eventually settle my practice in Colby, Kansas.Image

Now, hear me out on this one. Consider a few important factors. I’ll grade each.

Availability of Work: A

Last year, I attended a continuing education seminar where the idea of selling, closing, and/or passing-on a practice was raised. The conversation morphed into some lamenting by an older lawyer from Colby, Kansas. He noted that it was virtually impossible to lure younger lawyers to the area. He feared that his practice would die with him. It wasn’t that he wanted to leave a legacy. Quite appropriately, he was worried about his clients who relied upon him for various legal needs. The paying work was definitely there, but too few lawyers live in the area to handle it.

Air Quality: A-

Overall, the air quality is fantastic. However, I did dock points for the occasional dust storm and summertime pesticide applications on the huge farms surrounding the town. Even with that, the air quality is markedly better than those facing persistent smog in larger cities.

Availability of Services: C+

Walmart put a gleaming new SuperCenter there, so all the basics can be handled. Aside from that, there are some mom’n’pop stores and cafes coupled with a few chain places along I-70. While I’ve seen worse, folks in larger cities definitely have it better. Colby is still working on its status as a great place to find quality seafood.

Weather: B

Good news: no hurricane threat, fairly ho-hum temperate environment.

Bad news: Can get bitterly cold in winter, especially with the near-constant westerly winds. Every time you glance at clouds to the southwest, there’s the constant wondering whether they might be bringing a long-overdue F-5 tornado.

At more than 3000 feet above sea level, you’re safe from the flooding that’ll be cause by those pesky Antarctic ice sheets. For a while.

Things to Do: B-

You might be surprised to learn that Colby is the home of the Prairie Museum of Art and History and is conveniently located just 2.5 hours from Mount Sunflower, the highest point in Kansas. Check out this site which goes into more detail about Colby. Be sure to also check out the “8 Wonders of Thomas County, Kansas.

Denver is a mere 4 hours along I-70, and the thriving metropolis of Hays, Kansas is just 2 in the other direction.

This is a great place for those who find sport in observing mullets in their natural environment.


A picture taken by intrepid climbers at Mt. Sunflower.

Cost of Living: A+

To give you a bit of understanding for how far a dollar goes in Colby, look no farther than the local restaurant reviews. A Qdoba opened along I-70, and one of the locals regarded it as being “pricey.”

Average home price is less than $60 per square foot. That’s great considering that most of the US is higher than $75/. Commercial office space is equally (if not more) cheap and is readily available. I can already see myself as a valued neighbor to the Feed’n’Seed store.

As for everything else, expect to pay very little for the goods that are available. Of course, most expensive goods are not available, so your sorta forced to be frugal. Going to a fancy restaurant with the ladyfriend equals steaks at Montana Mike’s.

Quality of Work: A

This is largely a matter of perspective. You really have no choice but to be one of those small town guys who does a little of everything. From divorce to criminal to small business to municipal to animal husbandry. You’ll do all of this because the community needs you to do it. Prepare to travel to nearby (nearby = 2 hours) counties to appear in those courts. For those with adult ADD, you’ll be in heaven. For those who want to become a subject matter expert in one, specific, sharply-definied niche, this wouldn’t be a good marriage.

Sick of traffic every morning and afternoon? That doesn’t exist here. To Colbites, “traffic” is something that is occasionally observed zooming-by on I-70.

You’ll be a bigwig in the local chamber of commerce along with the banker, pharmacist, and funeral home director. The little league team will bear your firm’s name on the back of the jerseys. If you learn how to square dance, you’ll be mayor in a few years.

Overall GPA (on a 4-point scale): 3.42

That’s a solid GPA that would put most students on the honor role. As far as places to work, you couldn’t ask for better, as long as you’re not a big fan of choices……and seafood.


Eastbound and Down

In preparation for a move east at the end of the month, I told #63 that he’d be operating the blocking vehicle while I transport “the goods” in the “rig.”

I followed-up by telling him that his call sign would be “Bandit,” and I’d be “Snowman.”

I laughed.

His vacant expression told me that all references were completely lost on him.

I quit.

Though, just for good measure and for my own amusement, I may pack a case or two of Coors.

So, you want your kid to go to a top college?

Well, aren’t you special? You polluted the earth with your offspring, and now you want to show everyone how special your little air thief is by sending them to a first-tier school. How capital of you.

I know. I’m cruel. However, as it applies to the above paragraph, it takes one to know one. I am one. So, I know ones when I see ones.

This is obviously not going to be a law-related post. It is a post for those of you who envision your child(ren) going to a fancy-schmancy top national university (per the intrepid folks at US News). For the last year or so, I’ve lived this odyssey. It is fun at times, but, mostly, it sucks–like having kids in general. We tell ourselves that having children is a wonderful experience and we wouldn’t change it for the world. In reality, it is an experience that causes premature aging and unnecessary suffering. We devise these wonderful platitudes about raising kids in a pathetic attempt to make ourselves feel better about the misery we’ve brought upon our once-amazing lives.

If you have no kids and are reading this out of pure curiosity or chance, it is not too late to obtain a vasectomy or tubal ligation. Consider having the procedure done twice.

If you have kids who are approaching college age, then I’m sorry. Just keep telling yourself (as I tell myself) that your kids are wonderful and you couldn’t imagine life with out them, and that they make you happy………..blah blah blah. Keep repeating the mantras. Have a Xanax.

Now, let’s jump into this whole first-tier college thing before we get too depressed about the high price we pay for sexual intercourse. These are just a few thoughts I had this morning about my experiences for the past many months. It is hardly all-inclusive.

College Choice

First, your child needs to go to a college where they feel at home. They are the ones who must live, learn, experiment with drugs, and have sex at this place. Once they graduate, the college becomes part of their identity. As much as some try to deny it, we are judged by where we went to college. There is no choice but to live with it.

Your child should make a decision on college based on:

  • What college feels like “home.”
  • What they want to study.
  • What the college can do for their ability to obtain meaningful employment and contribute to society.
  • Where they want to live eventually.
  • The college’s reputation.
  • Cost and ability to pay.

None of this includes “Where mommy and daddy want me to go.” It never will.

So, what benefit do you get? After all, you’re the parent. You helped pay for this education. You worked hard, pushing little Dakota* to excel in high school to get into this expensive college. As compensation, you get to wear a t-shirt that says “_________ Mom” for four years. You must wear it sparingly, lest the parents in your community whose kids attend East-Northwest North Dakota State Wesleyan Half-Online University might think that you’re the pretentious prick you are. Once your child graduates, continuing to wear the t-shirt makes you look pathetic. That’s your only tangible benefit, and it is fleeting. I wish I could say more, but I can’t.

Some parents won’t stop talking about where their kid is going to college. Every conversation begins with “You know, my son, Dakota, is doing sooooo well at ____________. I’m just so proud of him.” Make no mistake, you become known as that jerk whose life revolves around Dakota’s accomplishments.

Encouraging and supporting your child to do well in high school is great, and all. However, college is not about you. It is about them. Don’t treat them as a 401K. Keep it in perspective.

Other notes:

If your analysis of a college includes “I just always wanted to go there..,” then your child should absolutely not go there. College is not for your vicarious needs. It is there for your child to hopefully provide future value to society. It has nothing to do with you.

There is nothing wrong with making sure your son/daughter understands that you are sending them to college in order to ensure that they will not be living at home after it is done. Emphasize that they must use their college education to find a job. You’re not a bad parent because you expect your child to act like an adult when they become an adult.

The Campus Visit

You get giddy just thinking about it, don’t you? You get to visit a college campus with Dakota, bonding and talking about their future, wonderful existence.

Nope. That’s not the way it works. Let’s review the average campus visit timeline for a better understanding.

7AM: Parent jumps out of bed, ready to visit CAMPUS! They dance around, drinking coffee, happy that the day is finally here. Teenager acts like a teenager at 7AM. They suck all the happiness out of the room.

8AM: Start driving to campus. Parent wants to chat incessantly about the campus and what-ifs about how it might be. Teenager wants parent to shut the fuck up.

8:45: Where the hell do I park? THERE’S NOWHERE TO PARK.

8:58: Finally parked at $20 per hour garage 2 miles from campus.

9:10: Covered in sweat from running to campus, arrive at admissions department briefing that was supposed to start at 9AM. Room is full of sweaty parents and kids who parked in same garage as you.

9:15: Briefing begins, led by low-paid admissions staff member. Generally, they graduated from the university within the last 5 years and were unable to find employment elsewhere.

9:15-9:30: You are told that the college is unique because of the teacher-student ratio, the innovative freshman core curriculum, the collegial atmosphere, etc, etc, etc. On your first campus visit, you are impressed by this. On your second campus visit at another university, you are amazed that they are unique in the same way. On the third visit you realize that it is all a bunch crap and every one of them is exactly the same.

9:30-9:45: Admissions requirements! This is where you’ll learn who has a chance and who doesn’t, right? Wrong. They’ll state that they use the “whole person concept” and do not solely use standardized tests and GPA. Bullshit. How can you review 30,000 applications each year and consider each as a “whole person?” You can’t. Many get chopped based on solid, objective criteria (i.e. standardized tests and GPA). Your child needs to be in the 90th percentile or above on standardized tests to have a real, solid shot. They’ll never admit this, and you may not like the reality or their denial of the same. Deal with it.

9:45: Oooh, they’re starting to talk about financial aid. You take scrupulous notes. They tout the university’s strong commitment to providing “100% of demonstrated financial need.” This makes you temporarily euphoric. Note my use of the word “temporarily.” More on this later.

9:50: A question-and-answer period. Your offspring will not have questions. If they do, they are an asshole, per teenage law. You should not ask questions, even if you have a question. That’s what the internet is for, and I promise that, if your question is truly important to a college education, something is on the googles about it. While your question may be important to you, I guarantee that it is not important to anyone else in the room.

9:51: Mother in obnoxious sweater asks whether her little zit-faced urchin will have research opportunities. Evidently, some internet site says that parents should ask about this. Let me provide a standing answer. Your child is going to be an undergrad. Their goal should be to survive as best as possible. No professor wants your unproven offspring to assist in their important studies until they at least have a college degree and are willing to pay for post-graduate studies. However, they may be able to witness research while mopping floors and cleaning urinals in the research area. That’s it.

9:54: After prefacing his question by haughtily stating where he went to college, a father asks a financial aid related question. This is answered with the “100% of demonstrated financial need” spiel.

9:56: Morbidly obese mother asks whether campus food services can provide for her child’s delicate (and, presumably, voracious) dietary needs. Don’t worry about the answer to her question. However, do pray that this is not your child’s roommate.

10AM: You move outside for the long-awaited campus tour, led by a student (or students) specially selected by the admissions department for their lack of noticeable facial blemishes.

10:01-10:02: Group gathers. Parents size each-other up. Clothing is compared. You are relieved that your kid has fewer pimples relative to the others.

10:02-10:30: Campus tour. The student-guide walks backwards, spouting various information about the campus that may or may not be true. They point at granite/limestone/brick buildings, stating things like “This building houses our East African Monkey Scrotum Advanced Studies Department.” The guide explains that this is the only university with such a department. Everyone acts impressed at the university’s dedication to unique areas of academia.

10:30-10:45: You reach the student union. Here, the guide will talk about various student organizations. Some will sound mundane. Some will sound fun. Some will sound like total bullshit.

10:38: Walk past on-campus Chipotle-knock-off restaurant.

10:45: Some schools will provide a brief dorm tour. Make note of the room sizes, average number of roommates, and overall cleanliness. Listen to see if any dorms have particular reputations. Lastly, remember that this is where your beautiful child will first experience the joys of unprotected sex with a relative stranger after a night of binge drinking.

11AM: Tour ends. Guide remains to answer any questions. Keep in mind that the guide really doesn’t want to answer your questions. He/she just wants to get away from all the idiots (you).

11:02-11:30: Attempt to talk to your child about the visit. They will reply in noncommittal grunts, giving you no indication whether they liked the experience or not. Just imagine a pleasant conversation in your mind. Sure, it may be delusional, but you’re a parent. So, it’s OK.

Financial Aid

Remember what I said about “100% of demonstrated financial need?” Well, we’ll discuss that here.

First, let me be absolutely clear about something. A top tier university costs about $70,000 per year. My number is more than what most colleges will quote, but it includes a healthy allowance for incidentals, including travel to and from for holidays and breaks.

If you’re reading this, you probably have a high-performing kid who has great grades and a solid ACT/SAT score. They could probably receive a full/near-full scholarship to a big-name state university. There is no shame in this. Harvard is a wonderful place for some, but a shitty place for others. It may be that your child is one of the latter. That’s fine. Really, mom, it’s fine.

So, let’s move to dollars and cents, focusing on that $70K per year big-name jobbie.

Right now, you’re reading this on a computer, right? Is it your computer? If it is, that means that you are able to own a computer. You have no demonstrated financial need. Pay 100% tuition and fees. If it is not your computer, then that means you must have walked somewhere to use someone else’s computer. That means that you were able to feed yourself sufficiently enough to muster the energy to make the walk. Knowing this, you have no demonstrated financial need. Pay 100% tuition and fees.

Do you and your child live in a cardboard box in a wooded park or abandoned lot? You might have demonstrated financial need. However, you must provide a high-quality digital photo of the box.

OK, OK. I wasn’t really fair with that. Let me be slightly more appropriate.

We are going to use two families as an example.

Family A is a modest middle-class family. 2 kids, mom stays at home, dad works as a mid-range blue collar worker. They live in a modest home that fits their needs, but nothing more. Dad pulls-down about $65K per year because he worked hard and was named as a foreman in his factory. The family lives modestly, buys used cars and drives them for their whole lifespan, investing money into a decent nest-egg, with only occasional, scrupulously-planned frivolities.

Family B is very similar to Family A. 2 kids. Mom stays at home. Dad works in the same factory as the dad in Family A, also as a foreman earning $65K per year. However, this family blows their money as soon as they spend it, with an Xbox, Playstation, and consumer debt for a new car every two years, a 4-wheeler, a boat, and a swimming pool. They have no savings. Money is spent as soon as it is earned. For this family, credit cards are made to be maxed-out.

We would all agree that Family A is smart, doing all the things that financial planners say you should do. They are responsible and willing to sacrifice a bit in order to build security for the future. Good for them. The reward? They get to pay $100 tuition and fees. Congrats.

Why? They have savings and are clearly not in a current financial hardship. They have the means to sacrifice a bit more, dip into those savings, and help pay for renovations on the university’s football stadium and an expansion to the student union to house a Ben and Jerry’s ice cream shop. The university deeply appreciates the dedication and sacrifice.

What about Family B? They are hedonistic, with consumer debt for luxury and excess goods. However, they have no savings in which to dip, and their income to debt ratio shows that they have placed themselves in a horrible current financial situation. Bankruptcy is a real possibility for them, especially once they purchase a second 4-wheeler. They will receive significant financial help from the university because they have a demonstrated financial need.

Who do you blame for this horrible disparity. Look no further than that Free Application for Federal Student Aid (FAFSA). This form must be completed by anyone looking for financial aid (even loans) through the school.

Let me be blunt. The FAFSA is not looking for financial need. It is looking for financial means. Don’t delude yourself to believe otherwise.

But, hey, is there really a limit to how much you’d pay to make Dakota happy? Of course not.

Save your pennies, mom. Or, better yet, get those his and hers Harleys you’ve been lusting-for all these years. Don’t worry about the fact that you can’t ride a bike or operate a clutch. You want them. You should get them. Pay full price. Empty your coffers and pile-up consumer debt. It could save you $280,000 in the long run.

There may be follow-ons to this post, as the mood strikes me. After all, this is just the tip of the college hell iceberg.


*Based on my cub scout leader experiences, Dakota seems to be a very popular name for boys. My den consists of Dakota, Logan, Cooper, Dakota, Ethan, Dakota, and Bill. God bless Bill’s parents.

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.