What a difference a few months, a good defense team--and a favorable ruling from a military judge--can make.
Not long ago, Air Force Colonel Michael Murphy seemed headed for a long stint at Leavenworth. The former Commander of the USAF's Legal Operations Agency, Murphy was facing charges related to a deception he had sustained for most of his military career. When Murphy joined the Air Force back in 1983, he had been disbarred in Texas for misconduct, and received similar punishment from the state of Louisiana after becoming a military lawyer. As a result, Murphy worked as a Judge Advocate General (JAG) without a law license for more than 20 years--violating a basic requirement for all attorneys in the armed forces.
By the time Murphy's deception was discovered, he had become one of the senior JAGs in the Air Force, and was being screened for promotion to Brigadier General. But the charade not only cost Colonel Murphy his promotion, it seemed to threaten his military career. After a lengthy investigation, the Air Force charged Murphy with 22 counts of conduct unbecoming an officer, failing to obey a general order, and larceny.
But recent months have seen a dramatic reversal in Murphy's fortunes. Earlier this year, nine of the original counts were dismissed, and more recently, that total was reduced to seven. But that was nothing compared to a key ruling last week by the trial judge, Army Colonel Stephen Henley. Responding to a defense motion, Colonel Henley decided that Murphy cannot be punished for his crimes--even if he is convicted (emphasis mine).
Erik Holmes of Air Force Times explains the rationale behind the ruling, and its dramatic impact on the case:
Murphy’s team of lawyers have successfully parlayed a dispute with the White House Military Office about access to classified information into a major victory for its client.
Murphy served as general counsel there from December 2001 to January 2005. He served with distinction, earning unrestrained praise from superiors on his performance reports.
Beginning in June 2007 — immediately after charges were filed — Murphy’s defense team began seeking access to classified information regarding his duties and performance at the WHMO, according to the judge’s ruling. The information 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.
The WHMO declined to release Murphy from his nondisclosure agreement, so Murphy was unable to disclose the nature of his work even to his lawyers.
In his Sept. 5 ruling, the judge said he would not order the WHMO to release Murphy from his nondisclosure agreement or to provide the information to his defense team. He also ruled that not having the information would not harm the lawyers’ ability to demonstrate that Murphy is not guilty of the charges, none of which directly relate to his tenure at the WHMO.
But the judge ruled that the lack of access to classified information would affect the defense’s ability to demonstrate Murphy’s good conduct and performance during the sentencing phase of the trial.
The judge also said jurors would reasonably want to know more details before sentencing Murphy, given the “apparent inspired quality of the accused’s ... work” at the WHMO. Because the government has refused to provide that information, the judge ruled, “the maximum punishment the members may adjudge is a sentence of no punishment.”
So, in other words, Colonel Murphy will walk away from his trail a free man, his pension intact, regardless of the outcome. While prosecutors have appealed Henley's decision, most analysts believe his ruling will be upheld. At that point, the prosecution team will face the choice of continuing the courts-martial--knowing that Murphy cannot be punished--or request that the remaining charges be dismissed. Regardless of their decision, Murphy wins, pure and simple.
We're not JAGs, so we don't claim to be experts in military law. But something about this arrangement stinks to high heaven. It would be interesting to know who at WHMO decided to hold Murphy to his non-disclosure agreement, which prevents disclosure of classified information, deemed essential to his defense.
Indeed, the decision of the WHMO--and Judge Henley's subsequent ruling--seem to fly in the face of other court cases involving sensitive data. In many of those cases, federal agencies, prosecutors, defense attorneys and judges were able to reach agreements on non-disclosure agreements and classified data that allowed the proceedings to continue, without jeopardizing national security.
Instead, it looks like someone at the White House Military Office decided to throw Murphy (and his defense team) a life-line, in the form of the organization's non-disclosure policy. That gave the Colonel's lawyers the opening they needed to claim that their planned "Good Airman" defense had been compromised, since they couldn't detail Murphy's exceptional performance at the White House.
It's worth remembering that Colonel Murphy's career spanned portions of three decades, and involved a number of other assignments. To the layman, it would appear that such duties could support Good Airman arguments, without the release of classified information. But that's not what Murphy's defense team had in mind. They were looking for an angle that could derail the entire case, and apparently found one. Colonel James Sinwell, Murphy's lead defense counsel, deserves credit for crafting an effective strategy.
As for the prosecutors, you would think they might have anticipated the WHMO/Good Airman defense, and found some way to head off those arguments. But in fairness, there is only so much the prosecution team can do. With his ruling, Colonel Henley gave the defense team--and Colonel Murphy--an early Christmas present. After the prosecution collapses (and Murphy retires from active duty), perhaps he can send a "Thank You" card to the judge, and the bureaucrats at WHMO who saved his bacon.
Sometimes, the bad guys win and get their pension checks to boot. The imploding case against Colonel Michael Murphy is merely the latest example.
Remind me to remember this when the next E-1, 2 or 3 leaves with a BCD for DWI's why we have two standards and we let people like this prosecute them.
Well if their aim was to destroy respect for the Officer corp and undermine good order and discipline, they could not have chosen a better way to do it.
The Judge himself needs to be brought up for courts-martial.
That would be "The Delightfully Named Col. Sinwell" wouldn't it?
As much as this outcome stinks on its own, I'm glad to see the Good Airman aspect standing intact. That feature of military law has helped far more junior enlisted than Zeros in adjudicating penalties over the years.
My very first law class began with a lecture on the differences between legal and moral thresholds. This seems to be a good example of those differences
The bottom line is that the rules said he had to have a valid law license. He did not for almost his entire career. Nothing else should matter. He is guilty of infractions based on that alone. He should be courts-martialed, jailed and stripped of his pension.
The reasoning is obvious. If those who judge right and wrong are themselves found to be wrong, then that immediately calls into question every judgement they've ever made--as well as those made by everyone else.
It is important to the functioning of the system that those who run it never be wrong. Therefore they aren't wrong, even when they are. They can be found to be in error, just as long as they aren't wrong.
Mac--Sinwell isn't the judge, just the chief defense counsel. I don't blame the good Colonel; his job was to defend Murphy (no mean feat), and he apparently found a novel way to get his client off, scot free.
This is a stunner, no matter how you slice it. A few months ago, virtually any military law expert you talked to was calling the Murphy prosecution a slam dunk. Now, thanks to Sinwell's tactics--and the judge's ruling--Murphy will walk away a free man, with his hefty pension intact.
I'm trying to learn the name of the WHMO official who held Murphy to his non-disclosure agreement, and set this entire, sorry process in motion. Sounds like Murphy still has some friends at the White House, and they helped him wiggle out of a major legal jam.
And BTW, don't look for the AF to mount new charges against Murphy after this debacle ends. Double jeopardy aside, they could probably find some new charges to file against him, given his 20-year history of professional malfeasence. But there are a lot of higher ups in the USAF who just want this mess to end, regardless of the legal outcome.
Stay tuned to see how spiteful AF leadership is. They could decide to prosecute him just to ensure the man has felony convictions which will effectively prevent him from ever having his law license restored. With the judicial process done, they can then administratively discharge him (no double jeopardy bar there) and pursue his separation from the AF with an under other than honorable conditions service characterization. That means no retirement. Yes, he'll try the same good troop defense and stand on the same privileged documents. But with the relaxed procedural & evidentiary standards that govern boards, the odds are better than 60/40 it'll go to a decision, and one that's adverse to the inestimable Mr Murphy. As for me, his BTZ promotion to civilian can't come fast enough.
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