In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

Since the public firing, the Secretary of Army has not issued a statement, directed toward defense counsel, that she respects their role in the military justice process and that they should uphold the professional oaths to zealously represent the client within the bounds of the law, the rules of ethics, and reason. Some of us remember when then-President Obama publicly suggested anyone accused of a sex offense should be discharged. This was erroneous. However, in that case, the Secretary of Defense quickly published a “cleansing” statement explaining the correct legal obligations.

Politico reported that

Obama said at a press conference in early May that came just as the Pentagon released a report detailing rising incidences of sexual assaults in 2012. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

This statement led to two accused’s having a military judge in their case hold that, if found guilty, the jury could not adjudge a punitive discharge.

Earlier this year, Marine Corps defense counsel were placed in an ethical quandary because of statements made to a defense counsel then representing a client in a difficult case. Those statements became a matter of significant litigation. United States v. Gilmet will tell you all you need to know about how the statements may have put Marine Corps defense counsel in a compromised position and having a potential conflict of interest between their own career and the interests of their client. Incidentally, the case against Gilmet was dismissed because of the statements made by the senior Marine judge advocate to defense counsel.

As civilian defense counsel, we at Cave & Freeburg, LLP, are not concerned about our zealous, aggressive defense of you coming back to hurt our careers. We report to no one other than the law.

REPORT prepared for the State Bar of Texas Annual Meeting, Military Law Committee Correction of Military Records and Judicial Review, has proven to be a shocker, and, should OUTRAGE every veteran ! Why you ask, well hold the phone.

I would suggest this “report” is not news. The writer and presenter is described as follows:

Mr. Toney was an officer in the U.S. Army Reserve. He has successfully represented clients in a wide range of military law matters. Mr. Toney has particular interest and experience in the areas of officer and enlisted promotions, whistleblowing, investigations, involuntary separations, physical disability evaluations, security clearances, and the correction of military records. He also represents military personnel and former military personnel requiring emergency and nonemergency federal court action. He has a number of active federal court cases involving the violation of military regulations, federal statutes, and the U.S. Constitution.

Warrior King: The Triumph and Betrayal of an American Commander in Iraq, by LTC Nathan Sassaman.

Retired Lieutenant Colonel Nathan Sassaman believes in winning.3 He won as West Point’s quarterback, and he preached the virtue of rising after a fall as an Army officer. In Warrior King, Sassaman attempts to win back his public image after involvement in a notorious incident of detainee abuse early in the Iraq War. In early 2004, while commanding 1st Battalion, 8th Infantry Regiment (1-8 Inf.) in Iraq, Sassaman learned that his subordinates had thrown two detainees into the Tigris River and that one of the men allegedly drowned. Sassaman coached his subordinates, “Don’t say anything about the water.” When word of the incident became public, Sassaman was roundly criticized for his deceitful and discreditable response. Sassaman has subsequently argued that he made the right decision and that an unfair Army system punished him for it, but he fails to argue convincingly that withholding information was justifiable. He sets out to counter the damning 2005 article “The Fall of the Warrior King,” which harshly judged him for his response to the detainee incident, but Warrior King is most compelling when he veers from his thesis to critique senior military leaders in Iraq. This review analyzes Sassaman’s thesis that his decision to withhold information was correct but that the Army system betrayed him. This review also suggests how judge advocates can use the book to become better advisors to commanders. Ultimately, I recommend Warrior King to readers interested in the ethical complexities of the tactical counterinsurgency battlefield.

A Fort Benning soldier has been sentenced to life in a military prison for the slaying of an Army trainee who was repeatedly stabbed with a knife in his barracks last year.

Reports WDBJ7.com.

A hearing will be held at 2 p.m. Tuesday for Capt. Herbert “Mark” Hamilton III, who was charged Nov. 3 with multiple offenses, including indecent acts, sodomy, fraud and conduct unbecoming an officer.

Reports Navy TImes and

Here is a case from New York City in which the accused’s Facebook activity proved his alibi. This case also, again, points out the fallacy of identifications. The accused was a suspect in a robbery and was picked out of a line-up.

Rodney Branford claimed alibi. He claimed and had his family testify that he was elsewhere on his father’s computer updating his Facebook account at the time of the robbery. The prosecutors didn’t think that was sufficient proof of alibi and were still going toward trial. Heck who believes and accused and his family. At least the prosecutor was willing to work with the defense and subpoened records from Facebook. The records showed that indeed he was updating his Facebook account from his father’s computer (IP address).

He was updating his Facebook at 1149; the crime happened at 1150; and there is quite a distance, let alone travel time, between Harlem and Brooklyn.

As a side-note, I recently found in a case that Google and other search tools were more accurate and reliable than information on LEXIS and WestLaw for information about people. A prosecutor was trying to use address and homeowner records from Lexis (and Lexis has a caution their records may not be accurate). A Google search found the real and accurate records.

Military.com, as with many other media outlets are reporting:

Nidal Malik Hasan’s overly zealous religious views and strange behavior worried the doctors overseeing his medical training, but they saw no evidence that he was violent or a threat.

The question, a legitimate question, has been raised about Major Hasan’s mental responsibility (read sanity or insanity) for his acts at Fort Hood. His lawyers – military lawyers and civilian – will rightly be investigating sanity issues as a defense or mitigation. The court-martial is going to hear sufficient evidence of what he did, the central question will be why – why from a mental health standpoint, not motive. And, as I and others recommend, the command ought to be doing that themselves rather quickly — getting the R.C.M. 706 examination discussed in an earlier post. Here’s some interesting observations from OpinionBlog.

People who are stirring up fear and hatred along these lines are completely missing the point. It doesn’t matter what Maj. Hasan’s religion is. It matters a lot what his sanity level is and was. His sanity level was off the charts. In medical/psychological terms, I think the technical term is “nut-case loony.” Anyone who’s been listening to Daniel Zwerdling’s reports on NPR over the past day would know that Hasan’s colleagues had been worried about him for years, concerned that he was psychotic and capable of inflicting harm. The reason he was assigned to Fort Hood was that he would be further out of harm’s way there. At least, that’s what they thought. They knew he was in significant psychological trouble, but no one seems to have done anything about it.

Now, Major Hasan has been with and around a lot of psysch’s over the years, and apparently some had questions about his fitness. But does the input and the day to day contact between Major Hasan and these mental health professionals cause doubt over the validity of an insanity defense in this case. Surely, these trained professionals would have identified someone who did not know right from wrong and who could not follow the law. This and other questions will be central to Major Hasan’s likely insanity defense. Will this case call into question the overall quality of mental care and providers in the Army?

Banner CNN day: Wolf Blitzer apparently really distinguished himself yesterday by asking Nidal Hasan’s military lawyer, retired Colonel John Galligan, how on earth he could do such a thing[?]

Many in the legal community are critical of President Obama, who as the Commander-in-Chief may have “screwed up” the prosecution of Major Hasan for his acts at Fort Hood.

“We are a nation of laws whose commitment to justice is so enduring that we would treat a gunman and give him due process, just as surely as we will see that he pays for his crimes.”

President Obama in his criticized speech at Fort Hood.

Recommended reading is Professor David Melinkoff’s, “Conscience of a Lawyer.”