Monday, September 15, 2008

Military judge rules Col Murphy can't be punished

COL Henley, the Army's chief trial judge who is presiding over the trial of Air Force Col Michael D. Murphy, has ruled that Col Murphy can't be sentenced to any punishment. Judge Henley issued that ruling in response to the government's refusal to provide the defense with access to classified information concerning Col Murphy's service at the White House Military Office. The government has announced its intention to appeal.

Here's a link to a publicly available Air Force Times article about the ruling. Today's print version has a slightly longer article about the ruling.
Posted by Dwight Sullivan at 9:17 PM

10 comments:

Anonymous said...

Yet again, petty gamesmanship by the prosecution and/or defiance at the imperial white house those any sense of justice under the bus.

Tue Sep 16, 08:42:00 PM EDT
Anonymous said...

COL Henley is a fine judge, so I'd bet the gov't royally screwed the pooch on this one for the D to get that kind of relief. But then again, it's the air farce, so kind of par for the course, I guess...

Tue Sep 16, 08:46:00 PM EDT
Anonymous said...

I don't disagree that the evidence should be turned over if the MJ rules it is required but how is that the appropriate remedy and not just abating the proceeding? I've never heard of an MJ crafting such a remedy.

Tue Sep 16, 09:27:00 PM EDT
Christopher Mathews said...

I guess I'm puzzled as to why the WHMO feels it needs to keep the material away from the defense and from the court.

This is not the first court-martial where classified information might be relevant to the disposition of the charges or to punishment. I'm confident there would be a way of protecting the information in this case without a blanket denial of access.

Wed Sep 17, 02:31:00 PM EDT
Anonymous said...

I'll second that: if WHMO at least provided the documents to the court for an in camera review, perhaps the judge could narrow his ruling and tailor a more appropriate remedy. If the "government" (it's a unitary executive after all, isn't it?) refuses to do even that, I don't see how they have room to complain about the judge's remedy being overly broad.

Wed Sep 17, 08:05:00 PM EDT
Anonymous said...

Lets all agree...if the MJ says it's relevant evidence or at least rises to the threshold level of in camera the government should turn it over and make the appropriate security demands. That being said, I thought for a discovery violation the MJ's option was abatement. Where does he have the power to say go forth and prove guilt but I say there is no authorized punishment?

Wed Sep 17, 08:22:00 PM EDT
Anonymous said...

While it's true that abatement is an express option for judges in these circumstances, I don't know of anything that would make it exclusive. I've never seen a judge give precisely this type of remedy before, but I've seen other remedies similarly 22tailored to meet the particular situation of the case, e.g. prohibiting the prosecution from introducing certain other evidence until/unless the defense is given access to the evidence at issue; issuing "spoliation" type instructions (i.e. instructions on certain mandatory/permissive inferences in favor of the defense, which would govern the court's deliberations in light of the government's actions), etc.

Thu Sep 18, 08:14:00 AM EDT
Anonymous said...

Agreed that the MJ has a lot of options to "tinker" with the trial evidence, precude the government from introducing certain evidence, calling certain witnesses, giving highly tailored instructions, all within the sound discretion of the MJ and probably not an abuse of discretion. However, I don't think the MJ has the authority to parce out an accused and say that this particular accused inthis particular case is not subject to punishment. I think abatement would have been a much better COA.

Here I think the MJ abused his discetion

Thu Sep 18, 08:55:00 AM EDT
Anonymous said...

Some members of the public think that the witholding of the OPRs is part of a scheme to railroad Col Murphy. I don't think so. Those who are witholding these highly favorable OPRs from the defense know full well that they are granting de-facto immunity to the accused.

Thu Nov 20, 04:29:00 PM EST
Anonymous said...

Unbelievable that another high level JAG is going to be getting off for serious ethical lapses. What really grates on me is the hypocrisy of it all…The fact that this Accused could go his entire career knowing his bar license wasn’t valid and, on top of that, to take such high profile positions. The Colonel either has steel balls or absolutely no conscience.

Thu Mar 05, 02:30:00 PM EST

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