CAAF dockets writ appeal in capital case
CAAF yesterday docketed a writ appeal arising from the capital retrial of LCpl Wade Walker. NMCCA set aside one of his two premeditated murder convictions and his death sentence in a decision published at 66 M.J. 721
LCpl Walker is scheduled to be retried in January. But the government denied every request he made for lay witnesses and the military judge refused to order production of any of the witnesses, ruling that the defense had not provided an adequate disclosure of what the witness would testify to if called. The defense filed a petition for extraordinary relief with the Navy-Marine Corps Court, arguing that the military judge had impermissibly adopted a higher standard than R.C.M. 703 for the disclosures necessary to compel the production of a witness. The defense argued that the military judge essentially required the defense to produce a script of the witness’s anticipated direct examination. NMCCA denied relief.
Yesterday, CAAF docketed an appeal of NMCCA’s denial of extraordinary relief. Walker v. Robinson, __ M.J. ___, Misc. No. 10-8006/NA (C.A.A.F. Dec. 3, 2009). (Presumably the docket number should end in MC.) CAAF also docketed a motion to stay court-martial proceedings pending its ruling on the writ appeal. Id. Consistent with C.A.A.F. Rule 19(e), CAAF ordered the government to file its response to the writ appeal no later than 14 December. CAAF also ordered the government to reply to the motion for a stay of proceedings and a couple of associated motions by 10 December.
[Familiar disclosure: I was one of LCpl Walker's appellate counsel, as were the No Man and Super Grover. Super Grover continues to represent LCpl Walker as part of his trial defense team.]
So, Grover is defending this murderer while prosecuting three SEAL heroes. I used to look up to that guy. No more. He’s a rock star, no question, but it’s not just about making appearances in the big cases; you’ve got to stand for something. Did anyone at the RLSO have the courage to tell the CA, “no thanks, I can’t in good conscience prosecute this case”?
I suppose something like Anon 2150′s comment above was inevitable. But it still irritates me. Judge advocates don’t pick their assignments. There’s a reason why they’re called “orders.”
Do judge advocates like Commander Grover stand for something? Yes: devotion to duty; professional competence; integrity. It’s no surprise to me that Commander Grover would be in demand to try prominent cases on both sides of the courtroom because he’s an extremely talented advocate.
I freely disclose that Commander Grover is a friend of mine, so discount what I’m about to type as appropriate in light of that disclosure. But it’s ironic that Anon 2150 would make a comment about “courage” while hiding his/her own identity. Anon 2150, how about having the courage to attach your name to your criticism?
Would it be appropriate for a judge advocate to tell his or her superiors, “I cannot execute the mission you have assigned to me”? In some extremely rare instances, such as where the assigned mission is illegal, yes. Is this one of those extremely rare instances? I have a guess, but it’s only a guess. I don’t have a sufficient factual basis to actually make that call. Anon 2150, do you?
Hoorah, Mr. Sullivan. In my opinion, if you’re not willing to post under your real name, go to a Yahoo chat room. On a professional, legal blog, actual names should be standard.
As a Judge Advocate, I’ve had the opportunity to go back and forth from prosecuting to defense to prosecuting to defense in four successive assignments. I’ve prosecuted a case one week, gone back to defend a hold-over client the next week, and then prosecuted again the week after that. Each client, whether the Airman or the United States, got my best. Who can doubt that both of Commander Grover’s clients won’t get his best? Not I.
John — I’m curious about the concept of a “defense hold-over client” I’m in the middle of a Dubay re-do (US v Lee) about that exact concept — ever have a hold-over client who was being prosecuted by your fitness report writing boss? How do you document the client’s consent to the obvious conflict of interest on the record?
– Disclosure, I’m the detailed defense counsel in both US v Lee and US v. Walker –
Like Col Sullivan, I do not have the “facts” to comment on the specifics of this issue. However, as a historical fact, like English Barristers of old, pre-separate Defense Counsel organizations in our military, it was not at all uncommon for JAGs to be prosecuting and defending cases at the same time. Yes, the evil was as Mr. Baker notes, your boss better have some ethical understanding, or your fitness report/eval will reflect it.
But, I was once “ordered” to prosecute a GCM on short notice where the original TC had to go on emergency leave. After reviewing the file, I went to the SJA and asked why the case had been referred, especially since the IO had recommended dismissing the charges [manslaughter, traffic accident where the deceased was deemed to be at fault]. I was promptly “advised” not to question his advice to the CA and ordered to get ready for trial. I asked to be relieved and it was denied.
I brought the matter to the MJ’s attention who “noted” it. Unlike the civilian sector where a prosecutor who disagrees with a decision can resign, unless it is a patently illegal order, you can only make your position known and as our Army friends say, “Soldier on!”
Having had numerous “hold-over” clients from 2 DC tours, as well as a number of IMC’s, if the Accused makes an informed decision, Commander Grover is clearly a lawyer’s lawyer, and does stand for something – he has not abandoned a client!
Did anyone at the RLSO have the courage to tell the CA, “no thanks, I can’t in good conscience prosecute this case”?
I think you are confusing courage with disobedience. Courage would have been, should he have been so inclined, to recommend or advise the CA to turn it down. But once that decision is made, you shut your mouth and carry out the orders. It’s called being in the military, and either you aren’t, haven’t been or are/have, and you are being quite disingenuous because were you in his position you’d be doing the exact same thing or you’d be facing your own set of charges.
I opposed going into Iraq. Thought it was patently stupid, still do. But when I got orders to go to Iraq, I didn’t say, I don’t believe in this, I’m not going. I signed my name on the dotted line, so off I went because it was my duty and part of being in the military is following orders. That’s how it works. So you not looking up to him because he did/is doing his duty? I don’t know the guy but I’m guessing he isn’t sweating it too much. I know I wouldn’t.
Do we not need to make some distinctions about the responsibility of a prosecutor?
Prosecuting the SEALS may be a bad idea — they refused Mast, so to some extent have put themselves in a court-martial situation. But is it unethical?
The other situation is where the TC believes, with good reason, that prosecution is unethical. For example, a situation where you have knowingly falsified laboratory evidence and the prosecution witness in the case is on tape and record saying that she will lie at trial to get even with the accused for a past offense?
In the first situation you do your job as a prosecutor.
In the second I think you consider more than bringing it to the judge’s attention, but consider asking the judge to release you as counsel for the government. And yes, you will be killing your career. We often talk about Prof. Mellinkoff’s book “The Conscience of a Lawyer” an excellent read, when speaking about defense counsel who defends the worst of the worst and “how could they?” But — despite evidence to the contrary (see United States v. Mott, NMCCA or http://openjurist.org/476/f3d/545/morales-v-f-ault), prosecutors are supposed to have a conscience, and as the motto at DoJ says, do justice.
And we shouldn’t overlook the potential issues in Lee and it’s post-DuBay aftermath.
Check out Rule 3.8 of the Navy Rules for Professional Responsibility, and U.S. v. Howe cited in the discussion.
Well sure, you don’t do anything unethical or illegal and I would argue putting on an admitted perjurer and false evidence using your example isn’t just unethical, it’s a crime.
I think we were all focused more on the other side…where you simply disagree with the prosecution.
Where you simply disagree with the prosecution you give your two cents, and then suck it up and do your very best if the CA refers.
Cheers.
Col Baker, when I left my job as the Area Defense Counsel in Turkey I had two clients who did not want to release me from representation. My next assignment was as a Senior Trial Counsel at Nellis AFB, NV. So once those two cases in Turkey and Italy were ready for trial, I went back and defended them (one of them with Mr. Phil Cave – full acquittal!). My Fit Rep as a prosecutor wasn’t done by the CA of the defense cases.
Hope that helps.
[...] previously noted the writ appeal filed at CAAF arising from the capital court-martial of United States v. Walker. [...]
I hate to admit this, perhaps it even rises to an ethical issue, but I was never able to as good of a job in a case where I was assigned and wasn’t convinced (or able to convince myself) in the merits of the case. That is true on both sides of the aisle. Sure, you put your best arguments forward, but its not the same as believing in your case completely. Just my own 2c.