Beating the Rap (Merry Christmas Edition)

The Air Force's case against Colonel Michael Murphy continues to unravel.

Murphy is the senior Judge Advocate General who was headed for flag rank until a background investigation revealed that he had been disbarred in two states as a civilian attorney. That led to the Colonel's dismissal as head of the Air Force Legal Operations Agency and criminal charges of conduct unbecoming an officer, larceny and failure to obey regulations.

But a funny thing happened on the way to the anticipated, slam-dunk conviction of Colonel Murphy. In September, the trial judge ruled that Murphy could not be punished, even if he was found guilty. Judge Stephen Henley determined that Murphy's lawyers could not present an adequate defense because the White House--where the Colonel worked from 2001-2005-- refused to release classified details of his duty in Iraq.

Without that information, Henley decided, Murphy's lawyers could not offer the standard "good airman" defense, comparing past examples of honorable service with accusations offered at courts-martial. Henley's ruling threatened to undermine the case against Colonel Murphy; thanks to the judge's decision, the disgraced JAG could be found guilty and still escape unpunished, his pension and other retirement benefits intact.

Now, the Air Force Court of Criminal Appeals has upheld Colonel Henley's decision. In a ruling released Monday, the service's highest appellate court determined that the judge was within his authority when he decided that Murphy cannot be punished--even if he is convicted. As Air Force Times summarized the ruling:

Chief Judge Col. James R. Wise presided over the case. In an 18-page decision, the court said a sentence of no punishment is an option of any case, so it is within Henley’s power to order that no punishment be given.

The court also said Murphy’s exemplary service to the White House Military Office, if the details were fully known, could lead a sentencing body to assign a sentence of no punishment.

And “because the government failed to submit the privileged information … it has significantly hampered [Murphy’s] right to have the sentencing body seriously consider a sentence of no punishment,” said the ruling.

While the Air Force hasn't released Judge Wise's complete ruling, that last sentence does a nice job of characterizing the legal quandary it has created. By holding the Colonel to the confidentiality agreement that he signed as a WHMO staffer, the organization has, in effect, thrown Murphy a legal lifeline, a "stay out of jail" card as some have called it.

As we've noted in recent posts, there are serious flaws in this reasoning. Over the years, the military has tried scores of officers and NCOs who held sensitive posts and the security clearances those jobs required. Despite obvious security concerns, those cases moved forward and most of the accused were convicted. There are no indications that any of their trials caused grave harm to national security.

In those proceedings, prosecutors, defense attorneys and military organizations worked together to ensure that the court was aware of honorable service by the defendants, without jeopardizing intelligence sources or covert operations. And, there's no reason that similar provisions can't be made for the trial of Colonel Murphy.

But the White House Military Office shows no sign of backing down, and there is little chance that the nation's highest military appellate court, or the U.S. Supreme Court, will overturn Judge Henley's ruling. Facing those barriers, Air Force prosecutors may well elect to drop the remaining charges against Murphy. Why go through with a trial when the Judge has already decided that the defendant can't be punished--even if the court finds him guilty?

That's exactly what Murphy's defense team is hoping for. At some point, they believe the Air Force will run out of appeals and throw in the towel, allowing their client to walk away a free man.

There is, of course, another alternative. President Bush, as the outgoing Commander-in-Chief, could overrule the White House Military Office, and order declassification of Murphy's service record in Iraq. That would remove the administrative barrier to the Colonel's planned defense, allowing lawyers to detail his Iraq service in open court--while ensuring adequate protection for the nation's secrets.

Unfortunately, Mr. Bush has demonstrated no interest in the case. He appears content to let Michael Murphy--a man he would have likely nominated for Brigadier General--ride off into the sunset, closing out a military career that was built on lies and deceit. It's entirely the wrong message to send to the troops, who have long believed that the military justice system fails to punish senior personnel, or those with the right connections.

And who can blame them? Among members of the armed forces, 2008 will be remembered (in part) as the year that a Navy officer was allowed to retire, despite her admitted role in a Washington, D.C. prostitution ring. And a few weeks ago, a jury at Fort Bragg acquitted an Army Staff Sergeant who threatened his commander, just weeks before the Captain (and another officer) died in a fragging incident in Iraq.

Now, it appears those travesties will be followed by Colonel Murphy's own escape from justice--another supposedly "airtight" case that somehow came unraveled. But there is one important difference. In the Murphy saga, the unraveling begins at 1600 Pennsylania Avenue.

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%.