Monday, October 22, 2007

Interesting amicus denied

Anybody have any more information on this Daily Journal entry from 18 Oct 07:

No. 07-0640/NA. U.S. v. David A. DEARMOND. CCA 200501343. Motion for leave to file brief on behalf of Amicus Curiae under Rule 26, filed by attorney Jacqueline M. Philips, in propria persona and as pro bono victim advocate counsel denied.

I believe Dearmond was an Art. 118(1) case, but he ended up pleading guilty to Art. 118(2). NMCCA issued its decision 31 May 2007 and on 24 July 2007, in the Daily Journal, CAAF released the appellate defense counsel (who was leaving active duty). But I couldn't find anything more to explain why a pro bono victim advocate amicus counsel wanted to file a brief. Perhaps a brief urging CAAF not to take the case? Any body else have any speculation here?

5 comments:

Phil Cave said...

Perhaps the Friday denial of Dearmond's petition had something to do with denying the amicus.

Would be more interested in knowing why the particular amicus decided to petition, and whether this presages future amicus.

Cheers.

Jason Grover said...

Thanks Phil, I missed Dearmond's petition denial. That would seem to make any amicus unnecessary.

Heavy Hermeneus said...

I can shed some light on the content of the amicus (though will withhold comment on the appropriateness of an amicus curiae for these purposes):

Argument 1 from brief: whether victims lose their right to restitution under 18 USC 3663a and 3664 when the military elects to exercise jurisdiction. If no, then she wants a remand to the CA to determine appropriate amount of restitution.

Argument II: Whether 47 USC 14071 et seq. (re sexually violent offender registration) are applicable to Appellant, and, if so, then asks for a remand to CA for determination of whether the provisions are triggered here.

Argument III: Whether additional charges should be brought against appellant for, among others, bigamy, hate crimes, perjury.

John O'Connor said...

Lest anyone think that my minimalist view of military appellate court jurisdiction is just thinly-disguised pro-government hucksterism, let me say that the CAAF not only properly denied this motion to file an amicus brief, but should have made its author report to the court for a paddling (at least of heavy hermeneus's description of the issues is accurate).

In fact, I think I should be entitled to restitution under 18 USC 3663a and 3664 for the three minutes of my life I lost thinking about an amicus brief such as this.

Jacqueline M. Phillips, Esq. said...

If any of you really want to know further, email me and identify yourself, with information that can be verified. I will respond, honestly and respectfully, to any one who does the same.

DeArmond's appellate counsel did an excellent job. But I'm very glad his appeal was denied.

On the amicus issues:

If the Court had permited their filing, the victims' rights and fraud on the court martial issues raised in the two different amicus briefs (NMCCA and CAAF) would have benefited all victims similarly situated and would have given a loud and clear signal to all members of the military, that ignorance of victims' rights in the military court martial proceeding will not be tolerated and that "TO PROTECT ONE'S OWN" means to protect the family members of the serviceman, not just the serviceman or servicewoman themselves. I have been advised that steps have been taken internally, to see that the issues that I raised in our amicus briefs are addressed and that the errors we complained about, don't happen again.

On a factual level, this was and still is, a horrific case. It is, in my opinion, a case no one in the military should be proud of.

On an appellate level, both the government and the appellate attorneys, I found to be extremely professional and very good at their jobs. I also understand why both the NMCCA and the CAAF did not accept our amicus briefs for filing. It is my understanding that the reasons go beyond what the record may reveal.

With respect to our motivation in filing an amicus brief, one of the primary reasons was certainly to try and get a published opinion upholding the rights of victims to be heard before a court martial sentencing proceeding and to prevent, what we believed was a fraud on the court (an issue raised in the amicus filed before the NMCCA).

The amicus was also filed because the victims in this case, the immediate surviving family members of the two murder victims, believed their rights as victims were ignored during the trial, plea bargaining and sentencing phases. To get some perspective, perhaps it might be helpful to understand some background as to what this case was about from the victims' perspective.

The appellate record doesn't really reveal what happened at the sentencing trial level, let alone what happened before trial. The murders occurred about 9 months after 9/11. DeArmond had converted to Islam years earlier. After 9/11, DeArmond expressed hatred toward Muslims. His wife and elderly mother-in-law, whom he murdered, were Muslim. I was also the court appointed special administrator for the estates of DeArmond's wife and elderly mother-in-law who suffered from Parkinson's, whom he killed. I had the power to investigate this case and I reviewed the ROT. I did not get involved in this case until almost two years afterwards.

In June 2002, the time of the murders and about 9 months post 9/11, the atmosphere in Honolulu was still shrouded in a heavy paranoia toward the Muslim community. DeArmond's wife, whom he killed, had a Hawaii Family Court TRO for domestic violence against DeArmond at the time of the murders. According to the Honolulu Medical Examiner's Investigation of Death Report, the TRO papers were on the front seat of DeArmond's car along with the passports of his wife and mother-in-law. The Navy took no steps to enforce that TRO. As you may know, since June 2002, the military law on enforcement of state court TRO's in domestic violence cases has changed, any prior ambiguity about enforcement is gone and the military now has the duty to enforce domestic violence restraining orders. DeArmond's wife, whom he killed, couldn't get a divorce from him, as DeArmond apparently never divorced his first wife, was a bigamist and apparently never told the Navy about that fact. DeArmond had a prior history of spousal abuse, he had pled guilty to a felony/wobbler in San Diego and in TRO papers filed in Honolulu, he allegedly had assaulted his wife with a golf club. The autopsy report of DeArmond's mother-in-law, in addition to the 13+ stab wounds (any one of 5 of which were fatal, alone) evidences that she sustained blows which left golf club like imprints in her body. Dearmond killed his wife after he first tried to rape her while she was still alive, then bashed her skull in with an iron skillet, cracking the skull in a complete semi-circle horizontally and then down into the spinal cord if memory serves me right from reading the autopsy;dragged both women's bodies upstairs, raped and sodomized his wife's corpse, put both corpses in the bathtubs of the two upstairs bathrooms, cleaned up the blood downstairs, up the stairway and the landing, missing splatters on the walls, took a shower (in the same bathtub/shower where he had placed his wife's corpse), subsequently gave the children breakfast, ordered them to stay downstairs and watch tv, then reported for duty, but then around 11 a.m. turned himself in and confessed (before he was properly advised of his rights.)

After the murders, the initial local Child Services social worker investigating placement of the children was afraid to even call the Muslim friends and witnesses of the murder victims and simply accepted as Gospel and put in her report, everything DeArmond, the murderer, told her. She was replaced and it is our understanding that her report was not viewed as credible by the HI Dept. of Child Services and was not used in the final placement of the children. Despite this fact the Navy apparently still relied heavily upon it in Dearmond's defense.

Under applicable Federal and Hawaii State law, the immediate surviving family members are victims also; in my legal opinion, these family members, my clients during DeArmond's appeal process, were denied their rights as victims at the trial/sentencing phase, for a variety of reasons.

The original CA was going for murder one; the defense brought a motion alleging (erroneously in my opinion) that the CA exceeded his authority in pushing for murder one; there was a change of command and Dearmond got an incredibly lenient plea deal (the NMCCA unpublished opinion takes note of that fact as well), i.e., murder one for the mother-in-law, voluntary manslaughter for the killing of his wife and abuse of the corpse (DeArmond raped and sodomized the corpse according to the Honolulu County autopsy report). It is my opinion, that the plea agreement was based on a set of stipulated facts that were false and the materially false statements therein constituted a fraud on the court martial by DeArmond. For this and several other reasons, a motion for leave to file an amicus brief was filed with the NMCCA raising these and other victim rights related issues, which was denied; then I was contacted by the Government appellate division and told I could try again and file a motion for leave with the CAAF as DeArmond's appellate attorney had filed an 80+page brief and the CAAF had granted review. I did, albeit narrowing the issues raised earlier in the NMCCA amicus and in the amicus presented to the CAAF for consideration, expressly stated that none of the issues I was raising were intended to reopen the sentencing or the case. If, for any reason, the appellate court granted DeArmond's appeal and remanded for either a new trial or a new sentencing trial, then I was seeking only what the law requires, that the immediate surviving family members of the murder victims, themselves victims under Federal law, be given the right to be heard before sentencing and that the federal statutory provisions for mandatory restitution in cases of violent crimes such as this one, be just that, mandatory, etc.

Also, I, as an attorney and member of the Bar in several jurisdictions, felt I was under an ethical objection to bring to the Court's attention, what I believed was a fraud on the court martial. Thus, as part of the amicus brief offered for filing in the NMCCA, were issues relating to the fraud which we believe was perpetrated by DeArmond, on the court martial and which was continuing to be prepretrated by him. Every attorney has a duty to prevent a fraud on the court and this obligation is a position that every fellow member of the Bar should support. For anyone to suggest otherwise makes one wonder just what interest they are advocating.

The two different amicus briefs presented to the NMCCA and the CAAF, both argued for enforcement of victims' rights that had been ignored in this case, but if the Court had chosen to consider the issue, and if the Court ruled in favor of the arguments, then a win for these victims would have been a win for all similarly situated victims. That, I would submit, is exactly what an amicus brief is intended to do.

For the brutal killings and abuse of the corpse, DeArmond was sentenced to 22 years in June 2003. However, I assume most of you know that such a sentence means that DeArmond will be eligible for parole after 7 years, approximately 1/3 his sentence, which means he could be released as early as 2010, if not earlier. I and others who know the true facts of this case, fear that when released, DeArmond will physically and sexually abuse again and will kill again. I and the family, hope and pray we are wrong. Everyone involved in his plea agreement will have to think long and hard, God forbid, if we are right. The immediate surviving family members of the two murder victims were never consulted before the plea agreement was entered into, nor did they even receive the courtesy of any prior notice that the murder one charges for the murder of Dearmond's wife had been reduced to voluntary manslaughter and that the total maximum sentence had been capped by the CA to 30 years.

There's a lot more to the story, but from certain posted comments, perhaps no interest. As previously reported by the press, the story also includes issues of child abuse. Not however, perpetrated by the victims as the defense might argue. It also, in our opinion, involves distortion, if not outright concealment of certain critical evidence that would have made reduction of the murder one charge down to voluntary manslaughter, impossible, by even the most myopic of viewers.

Hull Tech 2d DeArmond may have been a good sailor in the eyes of his fellow shipmates, but in our opinion, he is one very mentally ill human being who premeditated these killings at least, we believe, two weeks in advance and is a classic narcisstic pathological liar who is in need of help and he's not getting it according even to his own petition. Dearmond's identical twin brother and sister-in-law whom the Navy defense team used as character witnesses to support Dearmond's defense, had never seen Dearmond in some 14 years.

By the way, I am not a Muslim. I took the victim advocate amicus case on a pro bono basis because of the horrific injustice in the court martial process from the victim point of view and because of the fraud on the court martial issues. I recommended to the family that we give the Navy the opportunity to correct some of the harm it did to them, as victims, in this case, first, before considering filing a suit in Federal civil court to enforce their rights. Because, in our opinion, the Navy dropped the ball at the trial and sentencing phase and afterwards, with respect to advising the family of their victim rights (they were sent correspondence advising them they were not the "true victims"), we felt it important to try and bring these victim rights issues and the fraud on the court issues, to the Navy and the military's attention. These issues, if the NMCCA or the CAAF had chosen to address them, could have helped correct the military's failure to enforce victim's rights.

We could have filed a detailed brief in Federal Court on the victim's rights issues and perhaps could still do so. The amicus brief was the only method to avoid the embarassment the Navy might have experience had we chosen first to go to civilian court. Instead I recommended to my victim clients (Singapore Muslim citizens) that we make an effort within the U.S. military judicial system to bring these issues to higher command levels in the military justice system and in a manner that might have them take a serious look at it, as efforts by the family and local domestic violence/victim advocate efforts by others, prior to the appeal stage, had not only failed, but the family was treated with scorn by certain Navy personnel here in Honolulu when they attempted to get some answers. It took over a year and a half for the family to get even a redacted copy of the ROT. We did our own investigation as well. We now believe we know what really happened and its nothing like the story told by Dearmond or his defense team. It's too bad that certain members of the military, can't, even at this stage, acknowledge the truth(even if they can't change things) and at least, apologize, to the family of these two murder victims.

One of the other, key reasons I took the victims' rights case on, pro bono, was not only because my investigation led me to conclude it was a classic case of a male dominated system attacking the character of the rape and murder victim, but precisely because the victims in this case, including the immediate surviving family members, were all Muslim, were foreigners, citizens of Singapore and I wanted, in some small way, to help them work within our legal system, to show them that there is some type of a forum where their rights as victims might be able to be addressed, even before a U.S. military tribunal. I recognized before I started that the filing of the amicus is discretionary with the Court and that we may be turned down. But the case was such an egregious miscarriage of justice and violation of victims' rights, in my opinion, by any honorable American's standards of morality and justice, that I simply had to try.

I have spent hundreds, if not thousands of hours of my time, all pro bono, over the past four years, on various aspects of this case in representing the victims, not just before the NMCCA and the CAAF, but also in the state court and in assisting the family in the filing of victim impact statements at the annual review of DeArmond's sentence before the parole authority.

It is deeply troubling that anyone, let alone anyone still in the military, does not think that the civilian victims of violent crimes perpetrated by military personnel have a right to be heard, even before a court martial proceeding.

What should be done, in my opinion, is that the UCMJ be revised to grant exclusive jurisdiction to the State Courts over any violent crime, e.g. murder, manslaughter, rape, sodomy, child abuse, etc. perpetrated by a member of the military against a civilian victim. If the victim is also military, then perhaps I would agree that the military has a greater interest and should retain the right to exercise jurisdiction if they choose. However, where the victims are civilians, as was the case here, the military interest is far outweighed, in my opinion, by the victims' interest and the interests of administration of justice.

The Navy and the military courts, in my opinion, had an opportunity here when they were presented with the possibility of permitting the filing of the amicus briefs either before the NMCCA or the CAAF, to send a message to the Muslim victim family members in Singapore, indeed, perhaps even a message to the rest of the Muslim world, that yes, our American system of justice works, and our American military system of justice works even for civilian victims. My clients and I were understandably disappointed that the Courts elected not to seize that opportunity. I understand and respect their point of view, but I disagree with it. The right to disagree is what our United States is all about. Rather then be afraid of amicus briefs being filed before military tribunals, every American, including every military officer and service man or woman, should welcome such briefs. To do otherwise, I would submit, is to send the wrong message, and that is, to send the message that the military system of justice can simply ignore mandatory rights granted to civilians under Federal or State law. I submit that's not the message we want to send, not to our own citizens nor to the citizens of other countries.

To answer the query as to whether this presages future amicus, who knows -- the next time my first instinct might be that I shouldn't waste the time and effort giving the military the benefit of the doubt that they would be willing to consider, let alone actually rule upon and enforce, the victims' rights laws, but there's one problem with taking that point of view, i.e. it may well be that the Federal Court would require an exhaustion of remedies test and require that cases like ours be somehow first brought before the military courts and then, if all fails there, file a civil suit in Federal Court to enforce the mandatory provisions of the victims' rights laws. On the other hand, the NMCCA and the CAAF's denial of the right to file an amicus brief in this Dearmond case, could arguably be used as precedent for someone else in the future who chooses to file suit immediately in Federal Court to enforce the victim rights' statutes, that to file any amicus brief before the military court, is a waste of time and the law does not require a futile act. Things to think about. Time will tell.

Jacqueline M. Phillips, Esq. (Admitted in CA, FL and HI)

jacquelinephillips@earthlink.net