More Than 40 Years Dedicated Exclusively to Military Law | Learn More About Philip D. Cave

As a reminder, Prof. Cole brings us, Michael Murphy (University of Pennsylvania Law School) has posted The Search for Clarity in an Attorney’s Duty to Google on SSRN.

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much attorneys should be searching. This Article examines the following questions: is the “Duty to Google” merely yet another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? Where should this duty be codified, if anywhere? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much Googling is enough?

Applying this rationale, I believe, contrary to the view expressed by my brothers, that there is more than a possibility that appellant’s trial was adversely affected by unlawful command influence. My experience as an officer and lawyer in the Army is that, when a commander says he is angry about individuals giving favorable testimony on behalf of accused soldiers, people in his command pay attention. My experience also convinces me that, when this commander is a major general, and he expresses his displeasure in this regard in lectures over a period of a year and is joined by members of his staff and other subordinates in publicizing his view, a reasonable person could conclude that every trial in that jurisdiction was very likely to have been affected by such unlawful actions.

United States v. Whitaker, 21 M.J. 597, 601-02 (A.C.M.R. 1985)

The Ndavy fired three SEAL leaders in the aftermath of the alleged rape on the Iraq air base and charged one operator, an enlisted SEAL, with sexual assault, aggravated assault via strangulation and assault by battery for allegedly biting the victim on the face, according to his charge sheet. He faces a court-martial in November. A hearing in the case was held Friday at Naval Base San Diego. At the hearing, the lawyer for the SEAL, said he was concerned his client, who identifies as “non-white,” cannot get a fair trial because of systemic racism in the military justice system, pointing out that there are no Black judges on the Navy bench.

On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl.

  • “Thus, simply stated, it was the totality of the circumstances surrounding Appellant’s misconduct rather than any outside influences that foreordained the Army’s handling and disposition of this case. Therefore, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings. Accordingly, we hold that there was no appearance of unlawful command influence in this case, and we affirm the decision of the United States Army Court of Criminal Appeals.
  • As a threshold matter, based squarely on the plain language of Article 22, UCMJ, 10 U.S.C. § 822 (2012), Article 37, UCMJ, and R.C.M. 104, we hold that Senator McCain was capable of committing unlawful command influence and that a sitting president of the United States is also capable of committing unlawful command influence. Slip op. at 6.

“I didn’t want to plead guilty.” Followed with “my lawyers forced me.”

That’s a not infrequent complaint with appellant’s who plead guilty.

“In another, the defendent objected to the Navy counsel’s advice to plead “guilty.” He stated that though he admitted guilt, “he could have beaten it with a good lawyer.” Chaplain Reports on Prisoner’s Opinions of Naval Justice. 5 January 1947, at 15.

Salem News has an article about “SEALs pulled from Iraq.” The article is a lengthy one. From the article here is why there is at least one pending (possible) appellate case.

  • The Navy fired three SEAL leaders in the aftermath of the alleged rape on the Iraq air base and charged Special Warfare Operator First Class Adel A. Enayat, an enlisted SEAL, with sexual assault, aggravated assault via strangulation and assault by battery for allegedly biting the victim on the face, according to his charge sheet. He faces a court-martial in November.
  • A hearing in the case was held Friday at Naval Base San Diego. At the hearing, Jeremiah Sullivan, the lawyer for the SEAL, said he was concerned Enayat, who identifies as “non-white,” cannot get a fair trial because of systemic racism in the military justice system, pointing out that there are no Black judges on the Navy bench.

Scandal on Plum Island: A Commander Becomes the Accused
By Marian E. Lindberg
East End Press, 416 pages

Think of Plum Island, and what probably comes to mind are natural habitats, a lighthouse and remoteness, all of which were highlighted in a recent report on the island’s potential.

Most people probably wouldn’t think of military intrigue, courtroom drama and sexual politics.

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