The Commander of the Air Force District of Washington, D.C. (AFDW) has ordered an Article 32 investigation into charges filed against the former commander of the Air Force Legal Operations Agency, Colonel Michael Murphy. You may recall that Murphy was removed from that post last November, after it was revealed that he had been permanently disbarred in both Texas and Louisiana, and had served as an Air Force attorney--for more than 20 years--without the necessary legal credentials.
Major General Robert Smolen, the AFDW Commander, deliberated less than 24 hours before deciding to proceed with the Article 32 investigation of charges filed against Murphy. Roughly equivalent of a civilian grand jury, the Article 32 process determines if there is sufficient evidence to warrant a trial. According to Air Force Times, Colonel Murphy is accused of being absent without leave; failing to obey an order/dereliction of duty; making a false official statement; larceny; and conduct unbecoming an officer and a gentleman.
I'm not an attorney, and I'll leave any legal judgments to the current and former JAGs in the audience. But, from a layman's perspective, some of the charges leveled against Murphy are rather interesting, and suggest that investigators cast a wide net in their preliminary probe. Absent without leave? What does that have to do with the fact that Colonel Murphy was not a member of the bar during his Air Force career? Larceny? Again, I'm not an expert, but is that charge related to any special pay or travel benefits Murphy, based on fraudulent claims that he was a member of the bar and licensed attorney? I suppose we'll have wait for the Article 32 to find the basis for those accusations.
The rest of the charges seem straightforward enough; making a false official statement (an apparent to his claims that he had never been disbarred, beginning with his entry into the Air Force two decades ago); dereliction of duty (his refusal/inability to obtain the credentials required for his job); failing to obey an order (he was probably directed to produce the required credentials and couldn't), and of course, the old catch-all, "conduct unbecoming."
At the present time, Colonel Murphy is being represented by a military lawyer, Colonel James Sinwell, who declined comment on the charges. I'm told that Sinwell has an excellent reputation in military legal circles, and it will be interesting to see what sort of defense he plans for Colonel Murphy. Upon completion of the Article 32 investigation, Colonel Sinwell will almost certainly try to cut some sort of deal for his client, a guilty plea on reduced charges, in exchange for retirement at a lower rank, and preservation of Murphy's military pension.
If a plea deal can't be reached, Colonel Sinwell may build the defense case around several factors that work in Murphy's favor. First, his performance as a JAG was superb; assignment as Commander of the USAF Legal Operations Agency is proof that he was highly regarded, and on the fast track for bigger and better assignments. Secondly, there's little evidence that the Air Force was concerned about his legal credentials once he joined the service, despite the fact that Murphy served in a series of increasingly-demanding jobs. And finally, the service's own regulations on bar membership/credentialing were apparently murky. In the wake of the Murphy revelations, the Air Force had to clarify those rules--and conduct a quick review to determine that none of its other lawyers had been disbarred (none had).
But those may not be enough to sway a court-martial panel, assuming that Murphy's case actually makes it to court. As one of the Air Force's senior legal officers, Colonel Murphy was supposed to know the rules and set the standards. In that regard he failed, covering up his disbarment for more than 20 years. And, if that weren't enough, Murphy has the misfortune to be the first senior Air Force JAG to be accused of misconduct since the Fiscus case. In that episode, the service's senior legal officer, Major General Thomas Fiscus, was accused of inappropriate relationships with a number of women, dating back more than 10 years. He eventually retired as a Colonel, but there were accusations that Fiscus "got off easy" because of his status as a flag officer.
The charges facing Colonel Murphy are much different, but if this case goes to trial, the "ghost" of General Fiscus will certainly be in that military courtroom. That's one reason that Colonel Sinwell has his work cut out for him.