Friday, April 18, 2008

Trial date set for Colonel Murphy's court-martial

According to this news release from the Air Force, Col Michael Murphy's general court-martial is tentatively scheduled to start on 21 July. A motions hearing is scheduled for 23 June.

The trial judge in the case is Army COL Stephen Henley, the Chief Judge of the Army's trial judiciary.

Col Murphy's case arises from allegations that he wrongfully practiced law in the Air Force despite having been disbarred by his two licensing states.


Anonymous said...

OK, I'll bite: Where is the crime of "failing to notify leaders of the termination of his license to practice law" derived? Is this a regulation or general order...or one of those vague 'catch-all' Art. 133 violations?

Also, he stole $500? Really? Why does this sound suspiciously like a movie script where the 'evil' CA orders his minions: "find something...anything...on this guy!" And they find some kind of travel claim mistake or overpayment. "Gotcha!"

I am not defending his wrongful practice of law; he should be duly punished for this. I just detest the way the government piles-on extra charges.

Anonymous said...

Who is representing him?

Christopher Mathews said...

First anon: Also, he stole $500? Really?

No, probably not.

The article says "more than $500." That's the dollar figure at which increased possible punishment for larceny kicks in, so it's pretty standard for prosecutors to plead larceny "in excess of $500" for any amount from five hundred dollars and one cent up to ... well, how high is up?

Let's assume for the moment that when drafting the charge sheet, the prosecution believed Col Murphy stole about $10,000, and maybe much more. It wouldn't be a surprise to see them allege the theft in the way described in the article: an unspecified amount greater than $500.

Anonymous said...

Couldn't the larceny be obtaining his pay and allowances via false pretense?

Anonymous said...

The full specificaion from tehe media shows it to be a violation of a regulation. And, according to media, the larceny charges are unrelated to his bar problem. To Anon#1, it seems that before "detesting" a specfic action, it might be wise to at least understand the specifics. I don't care if he stole 1 cent, it's theft by a colonel in the military. If the proof is there beyond a reasonable doubt, I've no problem allowing him to be punished for all his misdeeds. How is it piling on if he did it? I have no idea whether he did or not, but just seems that before feeling so strongly about something, it would be best to know the facts. As for the disbarrment part, it appears he lied to the LA bar after being suspended in TX - the guy is a obviousally a pretty blatant liar. I would like to see the records for his original suspension in TX - I find it VERY hard to believe this was for simply failign to file an appeal or whatever. Guarenteed, there is more to that story. Biggest question, is how can it possibly take this long to actually get to trial?

Anonymous said...

I don't know how long it's been since Col Murphy tried or defended a case, but he made a false official statement every time he announced at the beginning of a trial that he was properly certified and qualified to act as an attorney.
The larceny count supposedly stems from false travel and per diem claims that were uncovered after the problems with his bar status surfaced.

Anonymous said...

"I don't care if he stole 1 cent." Geez. I will just let that statement stand on its own. It says all you need to know about the moralistic attitude of a prosecutor...politician wannabe. It makes the pithy case of what "piling-on" is better in a mere eight words than I could have conveyed in an essay.

Mr. or Mrs. Perfect, I applaud your high standards. Let me introduce you to the Pope before he leaves town. I just hope nobody is watching you.

Anonymous said...

Nice try Colonel Murphy,

Just j/king an#1,
I think you mean, article 134

I believe his larceny deals, in part, with an allegation that he claimed a bogus trip to a university were he may have also been UA.

I think, like Fiscus, he has an army guy, but its late and I won't waste my time looking up who a dbo is represented by. I was wondering if his appeals will be handled by the army aswell.

A bigger question is why generals like fiscus are immune but anyone col or below gets shafted in the AF.

I have no sympathy for a man, who as a prosecutor stacked charges on people and had the gall to prosecute fraud cases while being the biggest phony baloney. What he is going thru is what we call just desserts.

I'm tony cossio and I approve of this message.

Anonymous said...

How is charging someone with alleged crimes committed stacking? Should we tell prosecutors, "Here is the panoply of crimes that might have been committed, you can pick 3 of the 8." Is that the discretion we want military prosecutors, many of whom are very junior, to have? Should each VUCMJ be rated 1 to 5 and if someone is charged with a 4 or 5 then they can't be charged with a 1? Sorry, if he's practicing law w/o a license and he steals on a travel voucher I do not see how that is piling charges.

TC said...

I don't think so either. In fact, I believe they are being lenient. I would disagree, however, that there isn't stacking going on period. Of course you can take a single offense and split it 7 ways to Sunday, that doesn't mean you should. This case however clearly has a multitude of individual crimes independent from one another.

For those who asked, he is being represented, as far as I know, by Colonel James Sinwell.

There was even a joke about AF names earlier on this blog:

Anonymous said...
Lead Counsel is Colonel James Sinwell, former chief of the Trial Defense Division.

Tue Aug 14, 01:41:00 PM EDT
CAAFlog said...
I love the Air Force! The head defense counsel was named "Sinwell"? Who is the head TC, Colonel Hammer?

Tue Aug 14, 08:34:00 PM EDT

I apoligize for saying he was represented by an Army guy, I got him confused with Col. Fiasco (Fiscus).


Anonymous said...

In reading these posts, it is obvious which posters have spent their entire career in military justice and have had minimal exposure to civilian law.

In the civilian world, prosecutors use discretion every day and with their limited resources and their concern for judicial patience usually limit them to charging only the gravamen offenses. Petty larcenies, assaults, minor drug offenses, perjury, etc. are not usually pursued.

I will reserve judgment on Col Murphy's alleged larceny until 1) I see what he allegedly stole; and 2) I see how the larceny was uncovered.

While posters are free to make the argument that the military is different and should have higher standards, they should not pretend that charging all possible crimes is the obvious way, the moral way, the only way, or even the most desirable way. It is not. But it is the way for people who are not limited by usual resource constraints.

John O'Connor said...

Last Anonymous:

You said: "I will reserve judgment on Col Murphy's alleged larceny until 1) I see what he allegedly stole; and 2) I see how the larceny was uncovered."

I obviously agree with #1, but I've never been a big believer in #2, which seems more like "well, I did it but you really wouldn't have caught me except for . . ."

Your point re prosecutorial discretion is well taken, though once you are going forweard with charges against an accused, the resources for going ahead with other charges are often marginal at best. In that case, I don't see anything wrong with charging what you have and then employing prosecutorial discretion either to deal away charges or to make a tactical decision later to narrow the case.

Cloudesley Shovell said...

This talk of prosecutorial discretion is somewhat amusing since (technically) the prosecutor, a/k/a the trial counsel, has no discretion to dismiss or deal away the charges. I suppose nowadays with most trial shops aligned with the SJA, that's becoming a distinction without a real difference, but for those in a mood to pick nits, it's the convening authority who dismisses charges and enters into PTAs.

My all time favorite as a trial counsel was the charge sheet for the guy on restriction who jumped off the lowered elevator of an amphib onto the pier. In addition to the breaking restriction charge, the SJA had also crafted a novel specification based upon the "jumping from a vessel into the water" Article 134 offense, changing it to reflect that the guy actually jumped off a vessel onto a pier.

It took more than phone conversation to get the CA (really the SJA) to understand the reasons why I refused to go anywhere near the courtroom with such a ridiculous charge. As it was, the guy beat the deal, two broken ankles and terminal stupidity being punishment enough.

Christopher Mathews said...

Anon (Mon Apr 21, 01:38:00 PM EDT): In the civilian world, prosecutors use discretion every day and with their limited resources and their concern for judicial patience usually limit them to charging only the gravamen offenses ...
While posters are free to make the argument that the military is different and should have higher standards, they should not pretend that charging all possible crimes is the obvious way, the moral way, the only way, or even the most desirable way. It is not. But it is the way for people who are not limited by usual resource constraints.

It seems to me you're arguing that because civilian prosecutors don't have the resources to pursue as many criminal charges as might otherwise be possible, military prosecutors should voluntarily impose corresponding restrictions on the charges they prefer.

If you're making a different argument, I apologize for misunderstanding, but the one I think you're making just isn't very persuasive.

TC said...

I agree with the last anonymous. He is not just making an arguement about lack of recources (which is the main issue) but also that one shouldn't charge everything under the sun. Which, the Military is known for.

The Military/Federal Government overcharge big time, one of the reasons is that they have nearly unlimited resources. The other is quite often the main charge may be BS, so they throw everything at an accuse to see what sticks, finally a larger charge sheet makes it easier for a jury/judge to convict or "force" a PTA. Everyone with UCMJ experiance knows this.

However, were I dissent with anon is that Col. Murphy is a victim of overcharging.

Anonymous said...

Christopher M,

I think the most 'moral' system is for the military to have resource constraints, too. I'm sorry I am not persuasive enough for you, so please read Scalia's (8-1) dissent about the problems with an Independent Prosecutor (creating a self-standing organization to find crimes tends to do just that...find crimes). The lack of checks that Scalia condemned tends to mirror what you get in the military justice system.

At the end of the day, this comes down to a theological argument. I believe that limiting the power of Government is a higher value than restraining the individual. I fear empowering the self-righteousness that you can read for yourself in these very strings. Think about it: Col Murphy had no law license, but the people like Mr. Yu - who provided such bad advice that their opinions had to be retracted - actually have their law license.

Your argument is essentially the "moral shame" argument: those who commit crimes forfeit their right to complain about systematic abuse. I simply don't buy that argument. It reminds me of the shallow people who called into radio talk shows when the story about the Government tapping our domestic phone calls broke. "I have nothing to hide," the silly argument went.

You can worry about somebody stealing $500; I will worry about somebody stealing my liberty. Its worth more quite a bit more than that $500.

Anonymous said...

Morrison v. Olson, 487 U.S. 654 (1988)

Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows:

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on [p728] any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940.


The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile -- with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.

Christopher Mathews said...

I'm certainly familiar with Morrison v. Olson, but it seems to me that arguing military prosecutors should determine their discretion based on the relative lack of resources available to civilian prosecutors is not what the Supreme Court was driving at.

I'm not aware of any evidence to suggest that there was a self-standing organization created to find crimes committed by Colonel Murphy. Instead, it's my understanding that as a matter of happenstance, the AF JAG Corps learned he may have made several false official statements and might not be qualified to hold his post; and that in the course of investigating the matter, learned of the possible theft of government funds.

You can argue, if you like, that Colonel Murphy shouldn't be prosecuted for such larcenies under any circumstance. You could also argue that there are special circumstances that otherwise would excuse his alleged crimes. You might even be right.

I'm just not persuaded that it makes sense to say that he shouldn't be prosecuted because a district attorney couldn't fund a similar case in some other jurisdiction. Nor am I persuaded that he should avoid prosecution because Professor Yoo remains a free man.

Anonymous said...

Scalia's dissent in Morrison v. Olson, while primarily dealing with the separation of powers issue, certainly does deal with prosecutorial limits.

Are you pretending that there is no "piling-on" in the military justice system, or are you just saying that there is no evidence of it in this case? I could be persuaded of point #1, but would scoff in disbelief if your are implying point #2.

I cannot and do not maintain that Col. Murphy should not be prosecuted. The issue is about the merit of the other charges, particularly the alleged larceny.(The larceny was what started this string). Investigators and prosecutors that have plenty of time on their hands...and the Devil will find work for idle hands.

Again, I withold judgment, but remain suspicious, about how "that in the course of investigating the matter, (the Government) learned of the possible theft of government funds." I have a premonition that the larceny might be an all-too-clever contrived charge. We'll see.

As opposed to you, I am persuaded by my argument! There is no better method to test data than against statistical norms. The fallacy in your argument is that it would require prosecuting more than about 3/4 of the population, especially if resources permit, including those who take their black government pens home with them.

Anonymous said...

And when there is a prosecution for larceny of a black government pen then you will have proven your point about piling on. Luckily, every accused has a 27(b) qualified counsel that can move to dismiss inappropriate charges and each court has an MJ who has discretion in sentencing and each court-martial is then reviewed by an appellate panel with "awesome" powers to dismiss charges or change sentences.

TC said...

Fun Usless Trivia,

Jackson was one of two (i think two) that took leave from the Supreme Court in order to prosecute Nazi War Criminals at Nurmberg.

A good Judge, but got his ____ handed to him by Herman Gering.

Anonymous said...

*Hermann Göring (sp)


John O'Connor said...

Yeah, I guess Goering got the last laugh there.

Anonymous said...

The black government pen was reductio ad absurdum, but there are outlier charges that do stick...and don't get overturned...because an appellate court will not "nullify" a relatively trivial charge that technically meets the elements.

But you stumbled over my argument without realizing it. Thanks. If a CCA has "awesome" powers to dismiss charges or change sentences, then prosecutors have 10X that "awesome" power. But investigations are largely invisible to the public and even to the courts, so they usually don't get much scrutiny. (Didn't NCIS concoct a gay-conspiracy after the USS Iowa gun-turret explosion based on a comic book? Likewise, some of the 'Islamic terrorist' domestic cases are largely based on what web-sites someone visits)

I respect the law, but think I am being perceived as advocating anarchy, chaos and crime. Not so. I am looking for sound rules and limits on the Government's expenditure of time and money in finding crimes. What worries me about the 'counter' argument (even though we probably don't disagree that much about the specifics) is the care-free sense that there are no meaningful limits, that by definition, prosecutors are the "good guys," and also the question of whether we are ultimately protected by a prosecutor's whim, or by principles.

Maybe what I am getting at would be some kind of internal military justice policy, like what the Justice Department puts out, independent of what the court's allow, that guides prudent investigation and prosecution.

TC said...

Well, the outcome was already determined in Nurmberg...I remember this fact because it was a Final Jeopordy Question (name the two Judges that took leave from the court).

Transcripts are found at:

Guidelines for Cross-Examination:
Lessons from the Cross-Examination of Hermann Goering

Supreme Court Justice Robert H. Jackson's cross-examination of Hermann Goering at Nuremberg is widely considered disappointing, at best. What can be learned from it?

By Scott W. Johnson and John H. Hinderaker

Guidelines for Cross-Examination:
Lessons from the Cross-Examination of Hermann Goering

Supreme Court Justice Robert H. Jackson's cross-examination of Hermann Goering at Nuremberg is widely considered disappointing, at best. What can be learned from it?


Sorry to get off track, but I get a good chuckle everytime Jackson is mentioned.

Christopher Mathews said...

The black-pen argument is indeed reduced to absurdity here, inasmuch as the alleged value of Colonel Murphy's larceny exceeds $500.

Without knowing more about the case, it's hard to say that the charge should not have been preferred. As I alluded to earlier, there may be compelling facts in extentuation or mitigation that would suggest the prosecution exercise its discretion in Colonel Murphy's favor. I am not aware of any; but I can envision circumstances where they might exist. Similarly, I think you can make an argument that a de minimis larceny should not be charged, although in this case I'm not sure on what facts you could assert the larceny alleged here meets that test.

What I object to, anon, is the idea that a person in one jurisdiction should get a pass because the district attorney somewhere else has a lousy budget. I don't think I can put it any plainer than that.

TC said...

New Prisons are being constructed at a rate of about four per month. The US has the most per capita incarceration rate than any other industrialized country. 1 out of 32 people are in jail, on parole/probation, or under some kind of supervision. I don't know of any one getting a "free pass" on a serious crime because of a lousy budget.

Now petty crimes on the other hand;

We throw people in jail in the military for failing a urinalysis, adultery, fraternization, etc. when an admin discharge is expedient and cost effective. The services aren't in agreement either, what will fly in the Army may not fly in the Air Force as there is often a disparity between cases and sentences even amongst the services.

In addition, there have been people that have been given a free pass in the military, despite having ample resources to prosecute.

A push for more fiscal responsibility will not equate to lawlessness.


In other words a budget will limit needless waste of time, resources’, and money on petty cases.

A lack of a budget means you'll get a man in jail a year for flunking a urinalysis test (like in the AF).

A solution perhaps would be more sentencing options for the military...Waiting....Nope, seems we have a broad range of sentencing options like probation but nobody seems to use them. That's too bad.

Christopher Mathews said...

I don't know of any one getting a "free pass" on a serious crime because of a lousy budget.

tc, your argument, then, is with the various anonymous posters who've suggested that Colonel Murphy's alleged larceny shouldn't have been brought to trial because prosecutors outside the military would not have the resources to pursue the same offenses by a civilian.

As noted above, however, I'm willing to engage other arguments (such as the one you alluded to later in your post, that some crimes might be too petty to be tried), but I don't know that anyone has advanced that argument with regard to Colonel Murphy, nor am I sure on what basis one could advance it with the facts at hand.

Anonymous said...

True, and as I stated earlier, twice and now trice, I disagreed that Col. Murphy is a victim of overcharging. From what I read he had the Government pay for a "trip" to a law school...Now since it became known he was disbarred, common sense would tell you that his "trip" was a UA coupled with a larceny (by fraudulent travel vouchers).

Again I am not sure...Let me see...Ah...

Ok, so for those Anons this is were the larceny comes from:

Prosecutors allege that Murphy behaved in an unbecoming manner when he accepted various positions as a military attorney--jobs he was unqualified to hold in light of his disbarment. The failure to obey charge stems from Murphy's inability to follow licensing requirements for Air Force JAGs. The larceny counts are unrelated to the credential issue, and (according to the Times) they are based on incidents uncovered during the course of the investigation. There has been some speculation that the larceny charges are based on travel taken for legal education courses or symposia that Murphy should not have attended, given his status as an unlicensed attorney.

Ok, so we have a disbarred attorney saying he made trips to attend symposia and take education courses that he shouldn't have...

Anyways, to me his conduct warrants a court-martial.

Does anyone know an instance were a civilian prosecutor engaged in similar crimes and what their punishment was? Not that we should compare civilian to military but I don't think this would have been handeled lightly in either side of the fence.

Anonymous said...

According to the most recent media accounts, the larceny offenses are unrelated to disbarment issue

TC said...

The plot thickens....

Anonymous said...

....the plot thickens indeed. IF, as posted above, the "larceny" stems from attending CLE's that he should not have attended because he was an unlicensed attorney, then I stand by my argument that the charge is 1) trivial; 2) contrived; 3) a waste of resources; 4) yet another example of a prosecutor trying to impress us with his all-too-clever charging artwork.

Again, this post is premised on the assumption that the larceny charge is the BS charge that is alleged. If it is, then my point is vindicated, and Col Murphy should have just been charged with the gravamen offenses...and yes...civilian US attorneys, district attorneys, and judges would roll their eyes at such a specious "larceny" charge.

Anonymous said...

...uh, and if you're completely wrong?

Anonymous said...

Yes anonymous, then the world will be yours...unless they send you one MILLION dollars...

Anonymous said...

...ah yes, things have changed since the 60s. $1 million isn't worth that much. And Liberache was gay?! Who could have seen that one coming!

If I'm wrong about the larceny, and its a legitimate charge - that is, a fairly customary run-of-the-mill stealing of funds, such as a bogus travel claim - then the military justice system will maintain its perfect streak. And its Amen corner can shout-it-out.

Ohh...and one more thing, speaking of how resource constraints will more sharply define a moral system. Today's Washington Post had a great front page article about how the military is expanding its felony waiver program. Morality is indeed relative. Its all about the numbers.

TC said...

Man, so many anons, its getting hard to keep track of these post.

Not all the military is getting waivers. The Air Force currently has 0 in the last two years.

And what branch is Murphy in? Yes, you can't mess around with the AF.

Odd, the AF has the reputation for being the most lenient of the braches, yet its clearly the heavest hitter when people get in trouble (CCU is a joke in the services, confinement in a AF facility is a lot more harder).

There is no second chances. Not like the other services were you can pick up rank again quick.

Anyways, maybe I'll sneek back in (via the Army) if CAAF ever grants my appeal.