Moving to Trial

Air Force Times is reporting that the case against Colonel Michael Murphy, the disgraced former commander of the Air Force Legal Operations Agency, has been referred for courts-martial.

Murphy, who was removed from his post last November, is facing charges of conduct unbecoming an officer, failure to obey a general regulation and larceny. Major General Franc Gorenc, Commander of the Air Force District of Washington--and the convening authority in the case--announced Tuesday that a total of 13 counts have been referred for courts-martial against Murphy.

The conduct unbecoming and failure to obey charges stem from the discovery that Murphy served as a military lawyer for more than 20 years without a law license, and concealed it from his Air Force superiors. Regulations require that all military attorneys have a valid law license in at least one state, territory or the District of Columbia.

Murphy was disbarred in Texas and Louisiana in 1984 and 1985, respectively. His disbarment in Texas stemmed from his failure to file an appeal for a client, and Louisiana disbarred him for lying about his troubles with the Texas bar. Murphy joined the Air Force in 1983, after being suspended by Texas, but before being disbarred by either state.

Originally, Air Force prosecutors filed a total of 22 counts against Colonel Murphy, but Gorenc dropped nine of them in early August. The remaining charges include nine counts of conduct unbecoming an office, a single count of failure to obey a general regulation, and three counts of larceny of more than $500.

Prosecutors allege that Murphy behaved in an unbecoming manner when he accepted various positions as a military attorney--jobs he was unqualified to hold in light of his disbarment. The failure to obey charge stems from Murphy's inability to follow licensing requirements for Air Force JAGs. The larceny counts are unrelated to the credential issue, and (according to the Times) they are based on incidents uncovered during the course of the investigation. There has been some speculation that the larceny charges are based on travel taken for legal education courses or symposia that Murphy should not have attended, given his status as an unlicensed attorney.

No date has been set for Colonel Murphy's court-martial. As we've noted in previous posts, the Air Force still faces significant hurdles in granting the accused a fair trial. As head of the legal operations agency, senior attorney for two Air Force commands and the former commander of the Air Force JAG school, Murphy has ties to many of the service's prosecutors, military judges and area defense counsels (ADCs).

Given that background, finding a JAG team and judge without a connection to Murphy will be difficult, at best. Some analysts have suggested that the Air Force might request that the Army handle the court-martial, to avoid charges of favoritism or bias against Colonel Murphy.

If convicted on all charges, Murphy could face up to 41 years in prison. Of course, there's still the possibility that the Colonel's defense team could reach a deal with military prosecutors, and plead guilty to some of the charges. On the other hand, Colonel Murphy could enter a not guilty plea and take his chances at court-martial.

So far, Murphy's attorney, Colonel James Sinwell, has not indicated what type of defense strategy he plans to pursue. Sinwell has an excellent reputation in military legal circles and he's represented high-profile clients in the past, most notably retired Air Force Colonel (then Brigadier General Richard Hassan).

The former head of the Air Force's Senior Leader Management Office, Hassan was accused of sexual harassment by a number of current and former female subordinates. While the general faced potential dismissal from service on the charges, Sinwell was able to arrange a plea deal that preserved Hassan's pension, although he was forced to retire at a lower grade.

Can Colonel Sinwell cut a similar deal for Murphy? It won't be easy. There was a perception that Hassan "got off easy," as did former Air Force JAG Major General Thomas Fiscus, who was also forced to retire as a Colonel in 2005, amid charges that he had a string of unprofessional relationships with female subordinates. Both scandals--and the "punishment" that was handed out--gave the Air Force a black eye, creating perceptions that the service will let senior officers slide by on charges of serious misconduct, while throwing the book at lower-ranking personnel.

Negative fallout from the Hassan and Fiscus cases have raised expectations that the Air Force won't be as easy on other, high-ranking officers accused of illegal activities. Given that backdrop, you might say that Colonel Murphy picked a bad time to run afoul of a legal system in which he was once a rising star. Colonel Sinwell will need every bit of his legal acumen to simply preserve Murphy's pension, avoid dismissal from service, and minimize potential jail time for his client.

It will be a very interesting courts-martial, assuming (of course) that Murphy elects to plead his case before a military judge and jury. At this point, we'd estimate that the odds are 60-40 in favor of a plea deal, but it wouldn't surprise us to see the Murphy saga finally play out in a military court room.