Tuesday, April 15, 2008

One Step Closer

The court-martial of Air Force Colonel Michael Murphy, the senior military lawyer who was disbarred more than 20 years ago, moved a step closer to trial on Monday, with his arraignment on 13 charges.

In a 35-minute proceeding at Bolling AFB in Washington, D.C., Army Chief Trial Judge Colonel Stephen Henley scheduled pre-trial motions for 23 June, with the court-martial to follow on 21 July, though that latter date is tentative.

Murphy, who served as Commander of the Air Force Legal Operational Agency until his dismissal in November 2006, is facing nine counts of conduct unbecoming an officer; one count of failing to obey a general order, and three counts of larceny of more than $500.

Colonel Murphy was removed from his post after it was revealed that he had practiced as a military attorney for more than two decades without a law license. When Murphy joined the Air Force in 1983, his law license had been suspended in Texas, for failing to file an appeal for a civilian client.

Texas followed with disbarment in 1984, after learning that Murphy had applied for a law license in Louisiana--without telling that state of his past disciplinary problems. Murphy was subsequently disbarred in Louisiana in 1985. By that time, he had been a military attorney for almost two years.

Air Force prosecutors charge that Murphy never informed his superiors of his disbarment. Military regulations require that judge advocate generals (JAGs) and defense counsels be licensed to practice law in at least one state, territory, or the District of Columbia.

If convicted on all counts, Colonel Murphy could receive a 41-year prison sentence, be dismissed from service and lose his military pension.

According to Air Force Times, Murphy appeared glum during Monday's proceedings. He did not enter a plea or express his preference for a jury or bench trial. Judge Henley granted requests from the Colonel's defense team to delay those decisions until after preliminary motions are heard.

The Murphy court-martial is a bit unusual in that an Army judge has been appointed to hear the case. The Air Force's Judge Advocate General, Major General Jack Rives, asked the Army to provide a military judge for the court-martial, given the defendant's former position as a high-ranking Air Force lawyer.

In his previous assignment at the Legal Operations Agency--and an earlier tour as Commander of the Air Force JAG school--Colonel Murphy influenced the training and careers of many of the service's attorneys and military judges. That raised concerns about whether Murphy could receive a fair trial from an Air Force judge.

The wheels of military justice have moved slowly in the Murphy case; by the time its goes to court in July, more than 18 months will have elapsed since the Colonel was relieved of his position. That delay suggests a dogged, methodical approach by military prosecutors, who have systematically built their case against Murphy.

And for good reason. the Air Force JAG corps has been under a microscope since the forced retirement of then-Judge Advocate General, Major General Thomas Fiscus, in 2005. Fiscus was sacked after it was learned that he had a history of inappropriate relationships with female subordinates. While Fiscus was retired as a Colonel--a reduction of two pay grades--the Air Force was widely criticized for the "lenient" punishment he received.

Hoping to avoid similar accusations in the Murphy case, the Air Force appears to be taking a hard-line approach. Nine of the original charges against the former JAG have been dismissed, but Murphy still faces multiple counts of "conduct unbecoming," stemming from his repeated acceptance of new positions that required a valid law license. The "failure to obey" charge is also based on Murphy's violation of credentialing requirements for military lawyers.

Larceny counts filed against Murphy are unrelated to the licensing issue. Prosecutors say they are based on other incidents, uncovered during the lengthy investigation. Military law experts believe the charges stem from government-paid trips that Murphy took to legal conferences and other professional seminars. Participants at those events were supposed to have a law license, something Murphy did not possess.

As we've noted in past posts about the Murphy saga, we are not attorneys and we'll gladly defer to experts in military law. But, judging from the pace of the investigation and preliminary legal proceedings, we'd say the chances for a plea bargain are virtually nil. This case will clearly be decided in court.

Murphy and his legal defense team face an uphill battle when the court-martial convenes this summer. Keeping the Colonel out of Leavenworth will take something approaching a legal miracle. Avoiding jail time and preserving Murphy's pension will require the skills of a Daniel Webster or Clarence Darrow. But don't hold your breath. While Colonel Murphy has some skilled lawyers in his corner, the Air Force legal system--the same one that Murphy helped administer for more than 20 years--has a conviction rate approaching 98%.


Ken Prescott said...

It looks like his only option is the Chewbacca Defense.

deskpilot said...

Based on what happened to AF Colonel Lofton at his general court-martial @ Sheppard AFB, TX, recently - 9 years and a dismissal for indecent assault, conduct unbecoming, and literally hundreds of instances of government charge card abuse - the soon-to-be Mr Murphy can probably count on a dismissal and several years jail time. It will be a sentencing argument to see, though, because he's a married father of several daughters who's performed brilliantly in every billet to which he's been assigned in his 23 year career. If he has any sense (an open question when you ask yourself why this man didn't punch on the very day he was retirement eligible), he'll plead guilty to the military judge alone and take his best shot. To put this case before a panel of members (all of whom must be senior in rank to him) would be the legal equivalent of suicide.