Tuesday, June 01, 2010

The Murphy Defense, Redux

The military career of Air Force Command Chief Master Sergeant William Gurney moved closer to an ignominious end last week. Gurney, the former top enlisted man at Air Force Material Command, was in a military courtroom, watching as attorneys presented evidence at an Article 32 hearing. The outcome of that hearing will determine if Gurney will face a court-martial on charges ranging from sexual harassment and adultery, to mis-using his official position to further personal relationships.

While a final ruling on the hearing is not expected for several weeks, it is almost certain that Gurney's case will move on to a courts-martial. Evidence presented during the Article 32 proceeding seemed credible enough to warrant a court-martial and (given its recent history in high-profile sexual harassment and misconduct cases), the service can ill-afford the perception that another high-profile defendant is getting off with a slap on the wrist.

That was the impression that resonated after scandals involving Major General Thomas Fiscus, the service's former Judge Advocate General, and Brigadier General Richard Hassan, who managed the Air Force office which handled programs and policies affecting the service's flag officers. Fiscus was accused of inappropriate relationships with a number of associates, while Hassan was charged with sexual harassment of female staffers, revolving around his apparent "foot fetish."

Both general officers were ultimately reduced in grade (to full Colonel) and forced into retirement. But they avoided a court-martial and the more serious sanctions that might have been imposed, including dismissal from service. The disposition of those cases raised new claims that the Air Force--along with other branches of the armed forces--has "different spanks for different ranks," allowing senior officers to avoid more severe punishment that would be levied on lower-ranking personnel.

That's why the Gurney case is attracting a lot of interest--and attention. As a Command Chief, Gurney wielded considerable power among AFMC's enlisted ranks, with the ability to help (or hinder) a career. Military prosecutors allege that Gurney, a 27-year Air Force veteran, abused his post by engaging in extra-marital sex with several female subordinates and making advances toward other women in the command.

But prosecuting Chief Gurney may not be a slam-dunk. During last week's Article 32 hearing, Gurney's defense attorneys did what good lawyers do--they mounted a head-long assault on their client's accusers, raising questions about their motives and veracity.

On the final day of the hearing, Gurney's defense team offered a rebuttal to earlier testimony by a female airman, who accused the former Command Chief of unwanted touching, and sending unwanted text messages to her. But two of the airman's former supervisors told the hearing she had an intermittent history of not being truthful or reliable regarding her whereabouts or military job duties.

And, in another blow to the prosecution, one of Gurney's paramours described herself as a willing participant in sex with the Chief and his wife. According to the Dayton Daily News, Master Sergeant Denise O'Connor testified that she had sex with Gurney on multiple occasions, and sometimes participated in three-way intercourse with Gurney and his wife.

MSgt Denise O’Connor said she exchanged sexually explicit text-messages with Chief Master Sergeant. William C. Gurney and, at his request, sent him nude photographs of herself.

Asked why she sent the photos, O’Connor said: “Because he made me feel sexy, he made me feel attractive.”


O’Connor said she participated in three-way sex twice with Gurney and his wife at William Gurney’s invitation.

“The three of us had sexual intercourse,” O’Connor said, responding to questions from government lawyer Capt. Tania Bryant.

“With each other?” Bryant asked. “Yes,” O’Connor said.

On one occasion, the Gurneys and O’Connor had drinks at a bar before Gurney’s wife provided a key to the couple’s hotel room, O’Connor testified.

“Did you know what that meant?” Bryant asked. “Yes,” O’Connor replied.


Under defense cross-examination, O’Connor said she voluntarily traveled to meet Gurney with the expectation of having sex.

“At no point did you feel Chief Gurney was abusing his rank?” defense lawyer Maj. Gwendolyn Beitz asked. “No,” O’Connor said.

If Major Beitz's name sounds familiar, it should. Last year, she was part of the legal team that crafted a highly successful defense strategy for Colonel Michael Murphy, the former Air Force JAG who was disbarred shortly after he joined the military, but served as a legal officer--withou the required credentials--for more than 25 years before his deceit was uncovered.

In their defense of Murphy, Beitz and her colleagues adopted a rather novel approach. Rather than focusing on Murphy's misdeeds, they argued the Colonel could not receive the "good airman" defense, because details of his service at the White House remain highly classified. A military judge (and an armed forces appellate court) agreed with their argument, ruling that Murphy could not be punished, even if he was found guilty. While the Colonel was eventually convicted, he was not dismissed from service and retired from the Air Force in April as a First Lieutenant--the last grade at which he "honorably" served.

When charges were initially filed against Chief Gurney, we wondered if his defense team would try their own variation of the Murphy defense. After all, Gurney spent most of his career in the intelligence career field; he held a high security clearance and was "read in" to various special programs that cannot be easily declassified to present as part of his defense. Given those realities, the Murphy defense seemed to be a viable option for Gurney's defense lawyers.

And that was before we learned that Major Beitz would represent Chief Gurney. In fact, her assignment to the case seems a bit odd. It is true that AFMC transferred responsibility for the Article 32 to Air Mobility Command, given Gurney's former position within Material Command. Under that arrangement, it's logical that an area defense counsel from AMC would represent Gurney. But there are a number of defense attorneys assigned to the command--and many are closer to Wright-Patterson AFB, OH (where the Article 32 was held) than Major Beitz's home station of Charleston AFB, SC.

Put another way, was it mere luck of the draw that put Beitz on the defense team, or is someone in the Air Force chain trying to ensure that Gurney has the best possible representation. At this point, Gurney's acquittal is a long-shot, but there is a very good chance that he will emerge (at a reduced rank), pension and benefits intact.
ADDENDUM: And there may be life after the courts-martial as well. Military legal scholars might want to research the Knudsen case at Davis-Monthan 20 years ago, and its rather unusual outcome.

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