A Legal Blog for the rest of us!

Saturday, January 24, 2004

On Thursday's Presidential Primary Debate, Peter Jennings questioned General Wesley Clark about a comment Michael Moore made last Saturday, January 17, in Concord N.H., saying he'd like to see a debate between General Clark and President Bush, "The General vs. The Deserter." This referred to a 2000 story that President Bush did not show up to a drill in Alabama while his Texas Air Guard unit was training there. General Clark replied that he had heard about the charges, didn't know if they were true or not, and wanted to shift the attention to Bush's performance as commander in chief. The pundits jumped on this. Mort Kondracke, on today's The Beltway Boys (Fox News), pointed out that General Clark didn't educate Jennings that Bush's absence, if true, only amounted to being AWOL, not desertion. (Good point) He also predicted it would hurt Clark (not so good point).

I'm not a professional pundit. I don't know if it will hurt General Clark; I doubt many people know the difference, and doubt they will expect him to educate everyone of that, even if he was in the service for over 30 years.

I am a professional military man though, and a student of military justice. So for every one out there, here's the difference between AWOL and Desertion.

AWOL (absence without leave) has three non-inclusive elements, meaning fulfilling any one can result in a guilty finding:
(1) failure to go to the servicemember's appointed place of duty at the time prescribed;
(2) leaves that place before properly relieved; OR
(3) absents him/herself from the unit, organization, or place of duty where he/she is required to be at the time prescribed. See 10 USC 886.

Desertion also has three non-inclusive elements:
(1) Leaves or remains absent, without authority, from his/her unit, "with the intent to remain away therefrom permanently;"
(2) quits his/her unit/place of duty with intent to avoid hazardous duty or important service,
(3) without being discharged from one service, enlists in another one without disclosing that fact, (or enters a foreign service [this part rendered void by US v. Huff, 22 CMR 37 (1956)]). See 10 USC 885.

Seeing that, if in any remote possibility this charge is true (I am not in anyway giving credit to this wild allegation), it is apparent that (1) there was no intent to remain away permanently (he finished his service so he had to come back sometime), (2) there was no hazardous duty or important service; Democrats characterized his entire term of service in the Air Guard as such, and (3) he never served in another service or a foreign service.

The pundits are right on this one; if there was a charge (and there never was any evidence to that effect), AWOL would be more appropriate than desertion. In lawyer talk, desertion is a specific intent crime; AWOL is it's general intent brother.
As I was stuck on the 405 (again) on Friday, I listened to a wonderful story on Howard Dean's internet campaign, why it is so strong, and why it didn't matter in Iowa. One of the side points the guests were making was about the increasing importance of blogs in our political discourse. Instapundit, Andrew Sullivan and the KausFiles were mentioned by name. Excellent discussion. Audio Link and guest links here.
Just look to Blogs For Bush for a post entitled John Kerry's Anti-American, Anti-military Activism, written by a senior Bush campaign worker. I find this quote most interesting:

It is clear that Kerry's making his service in Vietnam a campaign issue is, as Farah puts it, "whitewashing his anti-war radicalism," but he also wrote "…it is new front-runner John Kerry who has the longest and most prominent history of involvement with anti-American, anti-military activism."

I'm not endorsing any candidate at all; I still haven't made up my mind. I'm just giving you a glimpse of what's to come the minute the Democratic Convention gives Kerry the nod.
CORRECTION: Matt Margolis, the aforementioned blogger, is not affiliated with the CREPGWB. He is an important grassroots organizer, however.
More news on the controversial court martial of an Air Force Reserve pilot for a friendly fire incident that killed several Canadian soldiers in Afghanistan. Story from Canada. His preliminary hearing has been delayed because he broke his fibula playing indoor soccer. The trial is set for March 1.

Issues to look for in this trial:
- This is the first EVER trial of a servicemember for an aerial friendly fire incident. Many (including me, a former aviator) feel this pilot is being unfairly scapegoated in order to smooth over relations with the Canadians. JAG even devoted a "ripped from the headlines" episode to this, Episode 173, Friendly Fire, Airdate 2/10/03.
- Major Schmidt, the defendant, has hired a civilian lawyer. He's currently appealing the decision not to hand him classified evidence to the Air Force Court of Criminal Appeals. He won't win, but he may in the court of public opinion. Look for the "military justice is an oxymoron" crowd to seize on this one. Right now, his own client can't tell him some evidence.
- The Article 32 officer (a pre-preliminary investigator) recommended that ALL charges be dropped, but the convening authority (usually the first general officer in the chain of command) reinstated a dereliction of duty charge. The maximum sentence is six months, but if guilty, he'll probably just get a dismissal. Still, a lot better than the manslaughter charge he was facing, a possible sentence of 10 years.
- GO PILLS: This will be a key part of the defense. Major Schmidt claims he was under the influence of Flight Surgeon prescribed amphetamines to improve his performance, standard wartime Air Force practice. (I never took them, but my flight surgeon did have them for a rainy day.)
I told you earlier how, as much appeal that Kerry might have to the Centrist, there's no way in hell ANY democrat is going to beat Bush, with the outside exception of maybe Edwards. And here's why:

Can you just imagine the 30 second TV ad Bush is going to air with this in the background? This is going to be far bloodier than Willie Horton. I can hear the announcer in the background: "Is this the 'new kind of soldier' you want as your commander in chief?" That's the kind of photo that money just can't buy.

Thanks to the Evangelical Outpost for the picture.

Friday, January 23, 2004

Dahlia Lithwick from Slate writes about arguments today in the Supreme Court:

Even criminals deserve to understand the workings of the criminal-justice system. This is the basis for landmark Supreme Court cases like Miranda v. Arizona (requiring cops to advise you of your rights upon arrest). The theory is that criminals have certain rights and privileges, which are of little utility to them if they remain unknown. But it's not clear what the reasoning is behind the argument that criminals also have the right to be breastfed, burped, and cuddled by the criminal-justice system, although that seems to be the theory advanced this morning in Iowa v. Tovar.

Felipe Tovar has been arrested for drunken driving three times. In 1996 and 1998, he waived his right to an attorney and pleaded guilty. In 2001, when Tovar was found guilty of a third drunken driving offense (third time's a felony in Iowa) the court had no choice but to impose jail time. Tovar claims that the earlier convictions shouldn't count toward enhancing his third sentence because when he waived counsel and pleaded guilty, he did so without having received a proper warning about the dangers of waiving the right to a lawyer. Tovar doesn't deny driving drunk. He simply wants to go back and cancel out that first guilty plea because the judge should have told him then that lawyers are useful beings.

Lithwick writes that the justices gave Tovar's lawyers a very cold reception in their questioning. No wonder; two of the justices, Rehnquist and Scalia, were the ones who wrote that famous language assaulting the criminal procedure right expansion movement as needless "prophylaxis built upon prophylaxis." Minnick v. Mississippi, 498 US 146, 166 (1990) (Scalia, J., dissenting). With the Scalia/Rehnquist assault against criminal procedure, it's doubtful that a court calling the Miranda progeny "a veritable fairyland castle of imagined constitutional restriction," id., would overturn Tovar's conviction after the fact because he wasn't told that "lawyers are useful beings" at his guilty plea arraignment.

I tend to sympathize with Lithwick's seeming support for the notion that criminals should not have the "right to be breastfed, burped, and cuddled by the criminal-justice system." Unfortunately, that's exactly what my system, the Uniform Code of Military Justice, does. In civilian court, you can choose not to have a lawyer present, as long as you're sane enough to make the decision. In a court-martial, you have no such right; you will have a lawyer shoved down your throat, like it or not. Providence inquiries in the military are also much more stringent. At a civilian guilty plea hearing, all you have to do is be advised about the elements of the crime, and admit each one with a simple yes or no. That's not good enough for us though. The military judge has about an hour long script they have to read straight from the military judge benchbook; any deviation and its grounds for appeal (much less "harmless error" allowed in our system). Then, the defendant must not only say yes to every element, but must tell a convincing story to the judge. And the judge's finding that the story is believable is reviewed de novo. Simply go to Army Court of Criminal Appeals Website to read about the scores of military criminals being "breastfed, burped, and cuddled."

So the next person who says that the civilian system is kinder to defendants better read this post. If still not convinced, read this from the Intel Dumper.
Something's rotten in the state of Scalia: Senators Leahy and Lieberman have sent a letter to Chief Justice Rehnquist asking him to explain the propriety of Justice Scalia going on a hunting trip with Vice President Cheney when there is a case pending before the court in which VP Cheney is a party. Story here. "In a letter to Rehnquist, Sens. Patrick Leahy of Vermont and Joe Lieberman of Connecticut asked the chief justice to tell them what 'canons, procedures and rules' are in place to determine when justices should recuse themselves from cases."

I'll tell you what standards there are: none. "The code of conduct of the Judicial Conference of the United States applies to all federal judges but is only advisory and nonbinding on Supreme Court justices." CODE OF JUDICIAL CONDUCT. And we can't glean any knowledge from the chief justice's book, The Supreme Court; there's not one mention of a justice recusing him/herself. Probably what the Chief Justice will respond with is something like general principles of fairness, along with an assurance that no appearance of impropriety exists.

Let me tell you...it smelled to CNN, it smells to me, and I have a feeling it will smell to a lot of people, readers of this weblog included. It doesn't matter if anything improper happened or didn't happen: "[A]voiding the appearance of impropriety is as important as avoiding impropriety itself." United States v. Berman, 28 MJ 615, 616 (AFCMR 1989).

Thursday, January 22, 2004

I have no idea what this is for; xml is way beyond my technical expertise. However, I've had a flood of requests for it, so I had a literate friend add a blogmatrix rss feed here. Simply click on the button at the bottom of the page. Since I have no idea in hell what an rss is, use at your peril.
BENNIFER IS OVER... boo hoo.
Yesterday, I told you about the middle ground the JAGS at Headquarters took in their Amicus Brief. Well yesterday, we got word that Marine Major Michael Mori, the defense attorney for an Australian prisoner being held at Camp X-Ray in Cuba, held a press conference calling the tribunal system "created and controlled by those with a vested interest only in convictions." CNN.com - Hicks defense slams trial process - Jan. 21, 2004. His two main beefs with the system are that it provides a lower standard of proof, and that it may cause retribution from future enemies holding US prisoners of war.

My own personal views are that we have a duty to provide unlawful combatants with lower treatment than lawful ones; otherwise, there will be no incentive for enemy soldiers to comport their behavior with the Geneva Convention and other accords of international law. But I want to shift the focus to the TRULY remarkeable thing about this story.


Ever see The Court Martial of Billy Mitchell? He held a press conference calling the generals "criminally negligent" in their lack of funding for the air forces, leading in the deaths of scores of pilots. He was rewarded with a guilty conviction and a dismissal from the service. Military First Amendment issues are very complicated. While "men and women in the Armed Forces do not leave constitutional safeguards . . . behind when they enter military service," Weiss v. US, 510 US 163, 194-95 (Ginsburg, J. concurring), the governmental interest in restricting that speech is much higher than in civilian life, and therefore the balancing of the right and the interest wins out more often with the government. Specifically, with press conferences, Army regulations generally require that, when a soldier is speaking in the fulfillment of his official duties, such speech much be coordinated with a Public Affairs Office. The idea behind this is that the command should speak with one voice.

However, our civilian intuition tells us that the defendant should be able to speak publicly through his attorney, and when the only one available is military, he should be able to speak freely to the public in order to defend his client in the court of public opinion. No such right exists, though. "The Judge Advocate General has issued a policy letter instructing that the public affairs office will normally answer news media inquiries. Judge Advocates assigned to the US Army Trial Defense Service (USATDS) are reminded to refer media to the installation public affairs officer. No member of the US Army Trial Defense Service (USATDS) will 'provide a written statement for publication, provide information for publication, or permit himself to be quoted on official or legal matters without the prior approval of the Chief, USATDS." See, e.g., Jack B Patrick, USALSA Report, Army Lawyer, May 1988, at 24, 25. Other services have similar regulations. It's highly unlikely that anyone in this Marine's chain of command authorized that kind of high profile, extremely critical statement. Usually, all a TDS lawyer can do is say the client's name, the nature of charges, and a general claim of innocence. This goes far beyond that.

No word yet on whether this attorney will receive a reprimand or other discipline, but you can bet your bippy though the military won't let him pipe up again. That kind of thing just doesn't happen around here. And that's why that Marine has one big pair on him.
SHOUT-OUT: Thanks to the Unlearned Hand for the referral. Another Army Officer/future JAG with exceptionally insightful comments on general law and other matters.

IF YOU'RE LOOKING FOR SOTU PUNDITRY, LOOK ELSEWHERE: What an orchestrated event. Luckily, I heard it on radio because I was stuck in traffic on the 405. From what I read and hear, the orchestrated camera pans were more egregious this year. Anyways, others have talked ad nauseum about the State of the Union, so I'll concentrate on other issues.

Wednesday, January 21, 2004

The Intel Dumper writes:

Law From The Center: a weblog written by a UCLA law student who's also a captain in the United States Army -- but who's quite a bit smarter than me. (He made law review; I didn't).

Well, in all fairness, all that proves is that I write dry boring moot write-on competitions better than him. I don't make regular appearances in the opinion columns of our nation's most respected newspapers. In fact, my only published piece appeared in 1993 in the Riverside Press-Enterprise, decrying the increase of high-school lunch fees from $1.40 to $2.25.

But I'm always willing for a chance to appear in print. Any law review editors out there want to read my script?
Finally, a voice of reason in the battle over Camp X-Ray.

The battle over Guantanomo Bay detainees often results in the left and the right talking past one another. In various amicus briefs to the Supreme Court filed this week, two positions were staked out: the left says the detainees should be given full Constitutional rights, while the right says the case shouldn't even be heard by the Court.

But one brief stands out. Today, link here, word comes that the JAGs representing the detainees in Guantanomo Bay have staked middle ground. They agree with the right in the substantive argument that the detainees have enough rights already. However, they also agree with the left in the procedural argument that the court should hear the case and make that determination for itself. A la Marbury v. Madison, the JAGs are asking the court to both support the government action, and at the same time make sure that the judicial branch preserves its expansive jurisdiction. Judicial activism through judicial restraint.

This argument has win, win, win all over it, and represents brilliant lawyering. The Solicitor General's office, under the Bush administration, instead of using creative arguments to defend their positions, has pursued a scorched-earth policy of arguing in case after case that the Court simply doesn't have jurisdiction to hear the case, or should recuse itself due to justiciability concerns. Understandably, the Court has rarely found this a willing argument, even though they may have otherwise been amenable to the government's substantive claims due to the Court's current political makeup. The solicitor general should abandon it's crusade to contract the Court's jurisdiction; while the Rehnquist Court has in the past held this belief, recent decisions make clear that it has ended such a campaign and is now acting to stop the ebb of the Court's power.

Another interesting point is the power of Military amicus briefs as a centralizing influence (chalk another one up for the centrists!) In a court that finds it hard to communicate even with itself, it has increasingly relied on the military to provide pragmatic arguments on substantive points of law, instead of the caustic political rhetoric that pervades most amicus briefs. In short, the military has been the only true "friend of the court" in recent decisions. For a case in point, the Court's recent decision affirming affirmative action relied heavily on the Joint Chiefs of Staff amicus brief arguing that overturning affirmative action would hurt military recruiting programs, and in turn hurt national security. It was the only amicus brief that was heavily quoted, and seemed to be extremely influential on the court's reasoning. With a deeply divided court that most pundits believed would overturn the Michigan undergraduate admissions policy, the military brief may have been the unifying factor that broke the ideological logjam.

Indeed, the military is defending the civility of our nation in more ways than one.

Tuesday, January 20, 2004

Did the pundits really not see this one coming?

Of course, now all the left/right pundits are saying they saw it coming, but last night they all showed surprise. For those who live under a rock, Kerry won with 38%, Edwards a close second, and Dean a distant third. The tally here. All centrists understand that a Kerry victory at the convention will mean a REAL choice in November. Kerry represents a choice where we desperately need a choice: in health care, job creation, etc. Where we DON'T need a choice is on security...the American public, while many may be ambivalent on Iraq, will not trust their security to a Dean, and especially not to a freshman senator trial lawyer Edwards. Clark isn't a choice because he has no experience in the important areas: job creation, health care, etc.

What happened to Dean? Well, most pundits thought he would win the nomination at least because nominations are about staying true to the base, and Dean represents the base. However, his hot-headedness got the best of him. As Dee Dee Myers said on the Today show this morning, Dean was so busy playing to the crowds that he forgot to play to the cameras. Last night's "victory" celebration is a case in point. He riled up the crowd where he was and turned off EVERYONE who was watching on TV. Ms. Myers said that while he was busy exciting the crowds, he lost his message of change in Washington and talked NOTHING about the issues.

Is this so wrong? Should how well you play to the cameras really matter? ABSOLUTELY. The American public is not in the crowds, in the marching bands, in the organizing committees. The American public watches on TV and reads the pundits in the newspaper. If you want to win, you MUST talk to US, and you better bring a message. Kerry figured that out, and he won't forget it ever again.

Of course, all this doesn't matter. Save a stock market crash, Bush will win handily in November and there's nothing anyone can do about it. But Kerry will put up a good show. He's no Dukakis. Kerry, enjoy today. You're going to need the good spirits come November.

Monday, January 19, 2004

Today, as we celebrate the life of Dr. Martin Luther King Jr., many of us step back for a minute and ask, What would Dr. King say about the state of our nation today? Obviously, his dream has not been fully realized. African Americans and other minorities still do not realize the American Dream with the success and frequency that whites do. Recognizing that, what would Dr. King suggest to be the way to help everyone realize that dream?

Well, maybe his widow, Coretta Scott King, might be able to help us with that. King's Widow Pleads for End to Acrimony. Speaking today at Dr. King's home church, Ebenezer Baptist Church, Mrs. King had this to say about the present state of our national polity. "The noblest goal is not conquest of enemies but reconciliation with adversaries. We must remember in this election year that Republicans and Democrats, conservatives and liberals, we are all sisters and brothers." In this day of 5-4 court decisions, mudslinging and campaign-by-yellathon, perhaps we can glean some wisdom from Mrs. King. Would Dr. King express his discontent with the policies of President Bush by jeering and booing him during a wreath laying ceremony? (On King's actual birthday last week in Atlanta, hundreds had protested President Bush's visit to King's tomb, chanting, "Peace, not war; that's what Martin stood for.") Or instead, would he engage in more civil discourse, using the strength of his ideals instead of acrimony in his voice?

Remember today, that the greatest accomplishment of Dr. King was not bringing home the bacon for his interest group, but rather the strides he made in bringing us all together. His dream was that we could all live together peacefully, in harmony. Many times he communicated more through his silence than his speeches. Remember that next time you engage in our national discourse. Politics should resemble our highest aspirations, not a feeding trough for the hungriest from the left and right.

Sunday, January 18, 2004

Steve Yagman, of Yagman & Yagman civil rights lawyering fame, has drawn fire from quite a few conservatives in the past, and on the CenterMeter, he stands well left of middle. There's just something disconcerting to many rightists and centrists alike about the sheer number of excessive force claims his firm has filed against the likes of the LAPD, and the sheer amount of money that firm has made off them. Of course, the victims should get money when their rights are violated, but why should he get rich off it? There's just something sleazy about driving around a Jaguar after leaching the city coffers of millions of dollars.

But I digress. Today, he gets kudos from the Centrist in a tale of what goes around, comes around. In today's LA Times, click here (may need to log in), Judge Real of the Federal District Court in Los Angeles is reported to have been sanctioned by the 9th Circuit Judicial Panel in a secret, unpublished opinion for using his powers to help out a friend improperly. You can read to get the details, but the skinny on it is that he used his power to wrestle away a bankruptcy case from Bankruptcy Judge Katz to ensure that a probationer under his personal watch did not get evicted from her ex-father-in-law's rental property, resulting in a loss of $35,000 in potential rental income.

Where does Yagman come in? Apparently, Judge Real has gathered some enemies along the way, Yagman being the most ominous. Years ago, he fined Yagman $250,000 for supposedly filing a frivolous libel suit, a fine that was successfully appealed later. While us in blog land can safely accuse the likes of Yagman in the court of public opinion, if you're going to do it in real (no pun intended) court you better have the evidence. Judge Real didn't. The antagonism didn't stop there. Apparently, many attorneys felt he reigned over a "court of terror," using his favorite line, "This isn't Burger King, You can't have it your way." Many times, when asked for reasons behind his odd rulings, Real simply replied, "Because I said it."

After Yagman caught wind of the situation, he filed a complaint with the judicial counsel. Judge Schroeder initially dismissed the complaint, but Yagman persisted, resulting in the ruling described in the article. Instead of raiding the coffers in yet another contingency case, Yagman worked completely pro bono to ensure our judges follow the same rules of ethics the rest of the profession must follow. As much as I hate to quote a Trojan, Edwin Chemerinsky said it best: "I think it is important for the 9th Circuit to say a judge should not behave this way." You can't take a case with the purpose of affecting the outcome.

KUDOS to Yagman. If you're reading this, gimme some of your last judgment. Daddy needs a new Jaguar.
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