Articles Posted in Uncategorized

No, this isn’t about the President, but about one of his cases that leads us to consideration of attorney ethics when deciding to withdraw from a case.

Prof. Jonathan Turley has this critique of one of DJT’s attorney’s seeking to withdraw from litigation.

On January 7th, an attorney representing President Donald Trump filed a one-page motion of withdrawal from a case filed shortly after the election. That is hardly remarkable with attorneys entering and leaving cases every day in federal court. What is remarkable is the reason.  Philadelphia-based attorney Jerome Marcus told the United States District Court for the Eastern District of Pennsylvania that he was withdrawing because President Trump used him, and his election challenge, to “perpetuate a crime.”  The filing raises some troubling questions regarding the alleged criminal conduct as well as the necessity of making such an allegation in a simple motion to withdraw from representation.

The Air Force’s top enlisted leader is looking into an incident involving an airman who was sent a Letter of Reprimand and a Letter of Counseling shortly after attempting suicide, so reports Task & Purpose.

The airman said their unit, the 460th Space Wing’s Dental Flight based at Schriever Air Force Base, Colo., was plagued by toxic leadership problems and a hostile work environment, and other airmen stepped up on Facebook to share their own horror stories from the unit.

The situation came to light on Friday, when the popular Facebook page Air Force amn/nco/snco shared a message from an airman who was sent to a psychiatric facility for a week after attempting suicide with an IV catheter needle. The airman said they were sent to a facility by unit leadership not because they had attempted suicide, but because they showed up to work seven minutes late the day after the attempt.

The NDAA veto having been overridden, look for changes to Articles 6b, 66, 67, 140a.

• Review amendments.–The amendments made by subsections (b) and (c) shall take effect on the date of the enactment of this Act, and shall apply with respect to any case in which every finding of guilty entered into the record under section 860c of title 10, United States Code (article 60c of the Uniform Code of Military Justice), is for an offense that occurred on or after that date.
• Standby for “bridge” cases in the same or similar way we have seen bridge cases cause difficulties with instructions and post-trial?

The now law NDAA for 2021 has a number of provisions including this one. If you are not aware, compassion fatigue is a real thing even for lawyers, more for defense counsel and SVC’s than prosecutors. If you have compassion fatigue that can adversely affect your court-room work as well as relationships with others in the court-martial process.

https://www.stress.org/military/for-practitionersleaders/compassion-fatigue

Congress wants the Secretary of Defense take a look at this issue.

Prof. Colin Miller notes that prosecutor discipline for Brady violations is “rarer than steak tartare.”

He reports to case of a NY prosecutor suspended for two-years because of significant Brady violations.

On May 9, 2017, the former homicide prosecutor was caught withholding exculpatory material from Messiah Booker, a man charged with first-degree murder who had maintained his innocence. Mr. Booker was arrested and spent more than 18 months in jail awaiting trial before his defense lawyer discovered that Mr. Kurtzrock had altered hundreds of pages of police records to remove a wealth of exculpatory information, including evidence pointing to another suspect he knew Mr. Booker’s lawyer had been investigating. The prosecutor had also removed the covers of two police notebooks to make it look like his altered versions of the documents were the originals.

The Peace and Justice Initiative describes command responsibility as,

“Command or superior responsibility” is often misunderstood. First, it is not a form of objective liability whereby a superior could be held criminally responsible for crimes committed by subordinates of the accused regardless of his conduct and regardless of what his knowledge of these crimes. Nor is it a form of complicity whereby the superior is held criminally responsible for some sort of assistance that he has given to the principal perpetrators. Instead, superior responsibility is a form of responsibility for omission to act: a superior may be held criminally responsible under that doctrine where, despite his awareness of the crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish these crimes.

Are you unsure if President Trump violated the concept of command responsibility when he granted pardons to servicemembers accused of war crimes? Stuart Ford is not sure either as he surveys the question in Has President Trump Committed a War Crime by Pardoning War Criminals? 35 AM. U. INT’L L. REV. 757 (2020).

United States v. Jones., NMCCA 23 December 2020.

Appellant challenged the providence of his guilty pleas, alleged an abuse of discretion with the admission of various sentencing exhibits; and (again) an error in the entry of judgement. The findings and sentence were affirmed, but an amended EoJ was ordered.

The issue appears to come from Appellant’s inability to remember the exact places where his distribution and use of controlled substances happened and to whom. The NMCCA found that where and to whom is not a substantial enough inconsistency with the charged offense because those “facts” are not elements of the offenses. The NMCCA did impliedly suggest that the various “inconsistencies” could have been resolved by the MJ asking more direct and specific follow-up questions.

Stuart Ford’s article, Has President Trump Committed a War Crime by Pardoning War Criminals? 35 AM. U. INT’L. L. REV. 757 (2020) seeks to answer that from an international law perspective through the lens of command responsibility.

Command responsibility generally has two sides–the duty to prevent and the duty to punish.

One interesting question is whether clemency after trial would be a war crime under the author’s theory. For example, Behenna served a significant period of confinement and there were legitimate concerns about some Brady-plus issues. It does seem the author considers a preemptive pardon a potential war crime–pretrial for example.

The military trial judge erred in concluding that the search authorization required AFOSI complete information to determine probable cause for defendant’s DNA in a sex assault case. It’s not. Just because there were differing versions of how dressed the victim was when she woke up doesn’t make the authorization without probable cause. After the first DNA search was [erroneously] suppressed, the independent source doctrine permitted a second search authorization with more information backing it up. United States v. Garcia, 2020 CAAF LEXIS 706 (C.A.A.F. Dec. 9, 2020): [1]

It is repugnant to the purpose and principles of the Fourth Amendment for an agent of the government to “knowingly and intentionally, or with reckless disregard for the truth” include in an affidavit false information that is material to a search authorization request, Franks v. Delaware, 438 U.S. 154, 155 (1978), or to make material omissions “that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate,” United States v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (emphasis omitted) (internal quotation marks omitted) (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). This proposition should be self-evident. And yet, the Government’s troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion.

As Monty Python might say: Never Mind.

The head of Hill Air Force Base’s Equal Opportunity Office has been reassigned after failing to take complaints of sexual harassment seriously.

As part of the investigation, it appears

two attorneys were referred to the Professional Responsibility Program for the Air Force Judge Advocate General Corps. That office has initiated a separate inquiry into the allegations of unprofessional conduct. (Not clear if they are uniform or civilian attorneys.)