Monday, November 24, 2008


In our estimation, Air Force lawyers got it half-right in their arguments Friday before the service's Court of Criminal Appeals in Washington, D.C.

As we noted last week, the arguments were connected to the courts-martial of Colonel Michael Murphy, the former Commander of the Air Force Legal Operations Agency. He faces multiple counts of conduct unbecoming an officer, failure to obey a general regulation and larceny, after it was discovered that he served as a JAG for more than 20 years without a law license.

But even if he is convicted, Murphy may never spend a day in prison, or suffer any other penalties. In September, the trial judge ruled that Colonel Murphy could not be punished, because defense lawyers have been denied information on his classified duties as a member of the White House Military Office. Murphy served with that organization before assuming command of the legal operations office in 2005.

Without information from the White House, the judge ruled, Murphy's lawyers could not present the "good airman" defense at sentencing, which might reduce (or mitigate) potential sanctions.

In their arguments last Friday, Air Force prosecutors argued that the trial judge, Army Colonel Stephen Henley abused his authority and failed to consider less drastic alternatives. They also claimed the judge's ruling set a dangerous precedent, suggesting personnel with classified backgrounds could be "immune" from prosecution.

We understand that attorneys often present the "worst case" in their arguments. But it's silly to say that individuals with security clearances--or those who serve in sensitive billets--are immune from prosecution. More than a few former intel types and snake eaters have wound up in Leavenworth, proving that you can successfully prosecute military members with covert backgrounds. As a result, we don't think the "immune from prosecution" argument will carry much weight with the Chief Appeals Court Judge, Colonel James Wise.

On the other hand, we believe the prosecution team is on solid ground in stating that Judge Henley overstepped his bounds. With a 20+ military career behind him, Murphy and his legal team can cite countless examples of his past, "exemplary" service in mounting the "good airman" defense.

With only a limited knowledge of the appeals court and its rulings, we can't say how Judge Wise will rule in this matter. But it is relatively rare for an appellate court to reverse a trial judge, in both the civilian and military justice systems. That's why we'd be surprised to see Judge Wise to overturn the decision of his Army colleague.

But this is one case where a reversal appears to be in order. Allowing Murphy to go unpunished --and retire with a full pension--would set the worst possible precedence.


lgude said...

As I read this saga I find myself with some sympathy with Murphy. As I understand it he really is a lawyer who was disbarred for some reason. My criteria is that given his record of service, I'd hire him in a New York minute to defend me in his area of competence. He isn't like a fake doctor operating me - the man knew his stuff. I spent a fair part of my career training teachers and came to recognize that qualifications don't guarantee quality. Yes, I understand he was operating high up as a JAG without a valid license and why that is normally a punishable offence. What I don't see is a lot of harm - more embarrassment to the system. Bluntly, what we have here is someone who has done a quality job without the technical qualifications.

Spook86 said...

I have no doubt that Col Murphy has rendered valuable service to this country. But that service was based on a lie--promulgated for 20 years. He entered the JAG Corps claiming to be a licensed attorney, IAW military requirements and regulations. Over the next two decades, he perpetuated that lie, while advancing toward flag rank.

One of the fundamental lessons of military service is that your word is your bond. When an officer or NCO gives his word, makes a promise, or accepts an order, the military chain--those above and below--has every reason to expect that the individual will carry out that assignment, even if it means surrendering your life in the process.

Similarly, the military expects that professionals in its ranks be fully credentialed and accredited. When an airman in trouble meets with an area defense counsel, that individual has every right to expect his/her counsel to be a licensed member of the bar in good standing--and the airman shouldn't have to check the bar directory to affirm that assumption.

By maintaining his deceit for 20+ years, Murphy damaged the bedrock of trust that must exist in any military organization. Besides, if Murphy was such a good attorney, he wouldn't have been disbarred in the first place.

From what we're told, Col Murphy was originally disbarred in Texas for failing to file a client's appeal on time. Attorneys I've spoken with say that the appeal was likely the straw that broke the camel's back. Lawyers aren't normally disbarred over a single appeal; it likely represented the culmination of a pattern of substandard conduct and practice that prompted the Texas bar to take action.

And, lest we forget, Murphy tried to paper over his problems by applying for admittance in Louisiana. Unfortunately for him, the Louisiana bar did something that took the Air Force 20 years--they checked with Texas, found out about his past problems and the fact that he lied on his Louisiana application. That gave Murphy the dubious distinction of being disbarred in two states. But by that time, he was already in the Air Force, and spinning his new web of deceit.

One final thought: if Murphy wanted to serve, he always had the option of pursuing other military jobs. But he finagled a JAG slot, set his sights on flag rank, and nearly made it.

Letting Murphy retire with a pension would be intolerable, IMO. I'm also outraged that the Air Force would refuse to overturn courts-martials that Murphy participated in.