Military prosecutors will be in court tomorrow, attempting to overturn a trial judge's ruling that would prevent punishment for Colonel Michael Murphy, who served as a JAG for more than 20 years, despite being disbarred in two states.
Murphy was Commander of the Air Force's Legal Operations Agency--and on the fast track to flag rank--when it was discovered that he had no law license and had been disbarred by Texas and Louisiana in the early 1980s. Murphy not only lost his command (and future chances at promotion), he also faced prison time on charges of conduct unbecoming an officer, failure to obey a general regulation and larceny of more than $500.
When the Air Force outlined the case against Colonel Murphy, it seemed like a slam dunk. He never informed superiors of his disbarment, and continued to serve in positions that required a law license. At government expense, Murphy also attended conferences and meetings for credentialed attorneys, actions that (apparently) prompted the larceny charges.
But prosecutors were dealt a devastating blow in early September, when Army Colonel Stephen Henley, the trial judge, ruled that Murphy cannot be punished even if he is convicted. Henley, who was appointed to hear the case because of Murphy's senior status in the Air Force JAG Corps, made his ruling because the White House Military Office has refused to release classified details of Murphy's service between 2001 and 2005.
Without that information, the judge decided, Colonel Murphy's defense team would be limited in its ability to demonstrate his "good conduct and performance" during the sentencing phase of the trial, which Henley called a "substantial right of a military accused."
As Air Force Times reports, the White House's refusal to disclose information has become a veritable "stay out of jail" card for Murphy:
The information about his tenure at the White House would not relate to the facts of whether Murphy possessed a valid law license, but it could be useful in presenting what is known as the “good airman defense” – a doctrine in military law that allows the defense to present information about the defendant’s character and job performance.
Murphy served with distinction there, earning unrestrained praise from superiors on his performance reports.
One of the reports cited in court documents says, “Few will ever know the contributions he has made to the security and continuity of our nation, but I do.” Another calls Murphy “a national security asset of the highest order.”
During his tenure at the WHMO, Murphy deployed to Baghdad immediately after the initial invasion of Iraq, where he provided support and security to an Iraqi agent who was helping the coalition secure Shiite support, according to an award citation. He also came under fire multiple times while escorting large sums of money that were to be funneled into the Iraqi economy, the citation says.
Beginning in June 2007 —immediately after charges against Murphy were filed — his defense team began seeking access to classified information regarding his duties and performance at the White House, according to the Sept. 5 ruling by Henley.
Friday's arguments will be made before the Air Force Court of Criminal Appeals at Bolling AFB in Washington. Whatever its ruling, the decision of the Air Force court is expected to be appealed to the U.S. Court of Appeals for the Armed Forces, the highest in the military. A ruling from that court could only be appealed to the U.S. Supreme Court.
As AFT observes, a petition to the appeals court for the armed forces could delay Murphy's courts-martial by another year. Not that the disgraced JAG is in a hurry for his day in court; over the past six months, the seemingly air-tight case against Murphy has slowly unraveled. Some legal analysts believe that if the Air Force court upholds Henley's ruling, the prosecution of Colonel Murphy will collapse, and the remaining charges will be dropped.
At that point, Murphy will waltz out the door, with a full pension and other retirement benefits.