Since its inception, we’ve been following the civil suit brought by private court-martial defense investigator Carolyn Martin against NCIS, the SJA of MCRD San Diego, and others.

From my days as a civil litigator, I know that suits often develop in unexpected ways and that the ultimate decisional issue may not be apparent at first, but may evolve over time.  Martin v. NCIS appears to be a case in point.

At first, the case appeared to be kind of like an unlawful command influence case.  It appeared to be about limitations that government officials were placing on a member of the defense team in several ongoing courts-martial.  But apparently Ms. Martin’s debarment was never reduced to writing and the terms of the debarment appear to have changed over time.  Ms. Martin understood that she was prohibited from entering the MCDR San Diego Law Center building at all, which would have prevented her from attending court-martial proceedings.  As recently as 30 September, a trial counsel wrote in an e-mail that “Ms. Martin is barred from the building.”  But on 7 October, the MCRD San Diego Military Justice Officer wrote in another e-mail that “Ms. Martin is not ‘barred from the building.’  She is permitted in this building and on this base.”  But in an 18 October 2010 declaration, the MCDRD San Diego SJA–LtCol Sean Sullivan–swore that following a mid-August briefing, “the Acting Commanding General determined that Ms. Martin shall be debarred from the Law Center unless I approve otherwise.”  This uncertainty among various MCRD San Diego Law Center officers concerning the terms of the debarment points to the obvious wisdom of reducing such debarments to writing.

LtCol Sullivan also swore that he never did and never intended to prohibit Ms. Martin from “accessing any courtroom located on the 2nd deck of the Law Center should she be called to testify as a witness by a party in any judicial proceeding.”  He continued that Ms. Martin also would “not be prevented from accessing any courtroom at the Law Center for any judicial proceeding, should defense counsel request her presence and the military judge approves said request.”

In light of that clarification of the terms of Ms. Martin’s debarment, the plaintiff’s reply to the United States’ opposition to the motion for preliminary injunction focused on Ms. Martin’s First Amendment right to attend court-martial proceedings as a spectator.  This is an extremely important issue.  We’ve previously noted concern with actions by 82nd Airborne Division officials earlier this year to bar journalists from court-martial proceedings unless they agreed to ground rules limiting their ability to disclose the victim’s name.  And, of course, there was the famous incident at Guantanamo Bay where certain journalists were prohibited from covering future hearings because they reported supposedly protected information that was already in the public domain.  A case concerning a member of the public’s First Amendment right to attend a court-martial proceeding would, therefore, be quite important.

But then the case took another weird turn yesterday.  It will now primarily be a case about the plaintiff’s and plaintiff’s counsel’s ethics.  The United States makes an incendiary charge against them.  But after reading all of the materials, I don’t believe the United States has backed up that charge.

Here’s what the United States alleges:  “On October 27, 2010, Plaintiff and her attorney attempted to deceitfully gain entry to MCDR San Diego’s Law Center.  They blatantly violated the Acting Commanding General’s debarment order, which serves only to reinforce his decision.”  Let’s look at that claim neutrally and dispassionately.  The Acting Commanding General’s debarment order banned Carolyn Martin from entering at least certain portions of the MCRD San Diego Law Center’s building for at least some purposes.  The United States doesn’t claim that Ms. Martin entered the MCRD San Diego Law Center at all.  Rather, the United States’ surreply concerns the actions of Mr. Charles Williams in gaining entry to the Law Center.  Whether his actions were proper or improper, they could not have violated the debarment order addressed to Ms. Martin.  I’m quite surprised that Department of Justice counsel would claim that Ms. Martin and her counsel “blatantly violated the Acting Commanding General’s debarment order” when that allegation is quite obviously untrue.

The United States’ allegation that Ms. Martin and her attorneys acted “deceitfully” is unsupported.  The evidence that the United States presents does not definitively indicate that Mr. Williams acted deceitfully.  But if he did, the evidence the United States presents is bereft of any suggestion that either Ms. Martin or her attorneys suggested or requested that he lie.

Mr. Williams–a former Marine judge advocate–went to the Law Center at the request of Ms. Martin’s attorney to gather information about its layout.  Ms. Martin’s lawyer had previously called a defense counsel at the Law Center, who declined to provide a statement concerning the building’s layout.  The attorney then asked Mr. Williams to visit the building to provide a description of its security procedures.  Mr. Williams then called the same Marine defense counsel whom Ms. Martin’s lawyer had previously contacted.  The defense counsel told Mr. Williams that the MOJO was the correct POC.  Mr. Williams then went to the building and asked to see the defense counsel.  The defense counsel and Mr. Williams then made an unsuccessful attempt to speak with the MOJO.  Upon a second attempt, they succeeded.  Mr. Williams told the MOJO why he was there.  The MOJO asked Mr. Williams if he had official business in the building.  Mr. Williams said he did not.  The MOJO questioned Mr. Williams about how he got onto the base.  (Answer:  by showing his driver’s license to the gate guard, who asked him nothing about his purpose for entering the base.)  The MOJO then declined to show Mr. Williams around the building, escorted him out, asked Mr. Williams if he was in the USMCR (he is not), and watched him leave the building.

Here’s how the United States’ counsel turned that into an attack on Ms. Martin’s and her lawyers’ ethics.  The lance corporal who escorted Mr. Williams to the defense counsel asked Mr. Williams why he wanted to see the defense counsel.  According to the lance corporal’s affidavit, “he replied that he was a witness for” the defense counsel.  The defense counsel’s statement observes that Mr. Williams was not a witness for him, but adds:  “He was intending to be a witness for Carol Martin’s case.  I’m not sure how he introduced himself to [the lance corporal], whether as ‘a witness’ or [‘the defense counsel’s] witness.’  When [the lance corporal] brought him to my door I remember [the lance corporal] saying something like, ‘Sir, there’s a witness here to see you.'”

It seems quite plausible that when the lance corporal asked Mr. Williams why he wanted to see the defense counsel, he responded, “I’m a witness,” and the lance corporal assumed that he meant he was the defense counsel’s witness.  If so, there was no deceitfulness at all.  But let’s assume for the moment that Mr. Williams untruthfully said, “I’m the defense counsel’s witness.”  There is nothing in the evidence that even suggests that Ms. Martin or her lawyer instructed Mr. Williams to provide false information to anyone at the Law Center.  Yet the United States makes the unsupported allegation in a court filing that “Plaintiff and her attorney attempted to deceitfully gain entry to MCRD San Diego’s Law Center.”

I would expect such a serious but unfounded allegation to raise the United States District Judge’s ire not at its target but rather at the counsel who made it. 

The United States’ filing making this incindiary claim also includes obvious errors.  According to the United States’ surreply, the MOJO “escorted [Mr. Williams] off base.”  The MOJO’s affidavit indicates that he escorted Mr. Williams not off base, but rather out of the building.  Also, the United States describes a letter from Mr. Williams as “Declaration of Charles Williams.”  I would have expected DOJ lawyers to exercise greater concern for accuracy in filings raising such serious ethical charges against opposing counsel. 

[Disclosure:  Ms. Martin is represented by counsel from the ACLU of San Diego and Imperial Counties.  I don’t know either of them.  But for six years, I was an employee of the ACLU of Maryland.  I honestly believe that my reaction to DOJ’s filings would be unchanged if it involved allegations against any attorney; the fact that Ms. Martin’s attorneys work for an ACLU office and I used to work for a different ACLU office doesn’t affect my opinions expressed above.]

22 Responses to “The strange evolution of Martin v. NCIS”

  1. publius says:

    At the very least, showing up at OSJA spaces was needlessly provocative. What’s wrong w/ a discovery request?

  2. Anon says:

    “Provocative?!” Give me a break. Who is provoking who? We live in a democracy. MCRD San Diego is not exactly Area 54.

  3. publius says:

    “Provocative” is generous. If Team Martin succeeds in getting the judge to slap government counsel on the behind for this filing, I’ll consider taking back my “needlessly”, though even that hinges on the ultimate decision of the case, and result of the investigation. Otherwise, “idiotic” might be a better adjective. It’s never a good idea for a private citizen to stroll onto a military base for the purpose of checking out newly installed security equipment/procedures. He’s lucky he was simply escorted off.

  4. Anonymous says:

    It’s Studio 54 and Area 51. Whenever I hear someone whining about living “in a democracy,” I know emotion and not facts are it’s basis.

  5. Weirick says:

    Anon 1711 –

    Area 54 is way more secreter. You don’t even know!

  6. Anon says:

    Yeah, I got mixed up. But I wonder which location had more freakish visitors?

    This is truly exciting litigation. Emotion, not facts, plus boredom, seems to be the impetus behind the government’s prosaic pleadings. Now, right on schedule, the Amen corner will start with their predictable “security” screeds.

  7. Dew_Process says:

    Actions not likely to impress a US District Judge. Publius – good point if one is seeking “discovery.” I suspect however that the real point of the “procedure” was to graphically demonstrate just how ridiculous this whole thing is. Maybe Moby Dick will come leaping out of San Diego harbor for even more drama. Hopefully they’ll declare a truce before 13 NOV.

  8. Phil Stackhouse says:

    The only thing missing is a Clown Car.

  9. Brian le chien says:

    Not knowing anything about the case, I am curious to see where this goes. One thing gives me pause: For Dwight to be right, not only would we need a local SJA office to be slightly off their rocker (always a possibility), but we would need the local US Attorney’s office to join in the buffonery.

    Everything I know about inter-agency relations, and AUSAs, leads me to believe that there must be more to this case. But we will see…

  10. ksf says:

    Brian,

    As a TDS attorney, I defended a case that ended in a full acquittal for my officer client. Within 15 minutes after the verdict, the Chief of Justice calls me up and says, “I just want you to know that I am going to have myself appointed as a SAUSA, and we are going to indict your client in Federal Court.”

    Just like you alleged that the involvement of the US Attorney’s office should lend some credibility to the Government’s side, I’m sure that some at the US Attorney’s office in my case thought, “Certainly, the military knows what they are doing and wouldn’t waste our time.”

    My client was acquitted in Federal Court, too.

  11. Presley O'Bannon says:

    ksf,

    How does that work? The military and the federal government are both the same sovereign…how did double jeopardy not prevent a double prosecution?

  12. publius says:

    Different source of law, different crime. Prosecution under UCMJ in the military, prosecution under a federal criminal statute in the second.

  13. publius says:

    Should read: “…prosecution under a federal criminal statute in civilian court.” Apologies.

  14. Brian le chien says:

    I assume the Navy has a torts branch, separate from military justice, that assists the Navy in federal court (ie wouldn’t it not be a SAUSA).

    Second, despite coments below, I would tend to think DJ does kick in. One sovreign. I don’t think just because two separate statutues criminalize a given course of conduct, the same Government can prosecute him twice. (of course, if your client was charged in federal court for a completly unrelted course of conduct, well tht’s a different story).

  15. Presley O'Bannon says:

    I would buy prosecution for a “different crime.”

    But otherwise your distinction between UCMJ and federal criminal law is a false one.

  16. Anonymous says:

    Just to ensure everyone has their facts straight, you can learn everything you ever wanted to know about Studio 54 by watching the 1998 movie with the same name that has the vaunted Ryan Phillippe (better known as the ex-Mr. Reese Witherspoon) as its star; for Area 51 watch Independence Day with Bill Pullman playing the President.

  17. publius says:

    That’s more or less what I was getting at. Different crime can be charged elsewhere. But the source of law would necessarily be different, wouldn’t it? Can’t charge a UCMJ offense in federal court.

    If your point is that once an accused is acquitted of “murder”, for instance, at a court-martial he can’t then be tried for “murder” in federal court, I can’t disagree.

  18. Andy says:

    If you want a better background on the case, then you should examine the relationship of Lt. Col. Sullivan and Carolyn Martin during the trails surrounding Haditha. One was a prosecutor who tried to silence a witness in court, while the other served the defense:

    At one point during cross-examination Vokey tried to discover if Mendoza’s civilian attorneys had ever made any deals with the prosecution. An unidentified female representing herself as Mendoza’s civilian attorney from Philadelphia rose from the gallery to speak, but was cut off by multiple objections from Sullivan.
    http://warchronicle.com/TheyAreNotKillers/Blog/DefendOurMarines-MarineDefenderFired-NatHelms.htm

    With politicans screaming for blood, a successful prosecution of war criminals would not have had a negative effect upon the prosecutor’s career. So when 7 of 8 defendents were found either not guilty or charges dismissed, it is not hard to find a motive.

  19. ksf says:

    He was charged with some military specific crimes, such as attempting to influence, conduct unbecoming for tipping off a Soldier about a health and welfare, etc, as well as some crimes under the US Code. They dropped the US Code charges and court martial’d only the UCMJ charges, even though the subject of the US Code charges were intertwined. I didn’t represent him in Federal Court, so I would not have raised the double jeopardy issue.

  20. Anonymous says:

    “Andy” there are multiple witnesses who have knowledge of how Martin “serves” the “defense.” Having been both a counsel in the Sierra Circuit and a SAUSA in the SD CA, I am familar both with the reasons she was debarred from MCRD (and reasons other bases wanted to debar her) and what the USA-SD CA requires when they defend one of these claims. The USA would not be wasting their resources defending this case if there were not righteous reasons for the debarment.

  21. ksf says:

    Presley,

    I agree with you that there should have been a double jeopardy issue, but the Government was pretty crafty in this case. However, the point, I was making to Brian is is that the US Attorney’s office will get into bed with the JAG Office because they work pretty closely together and they start drinking the Government Kool Aid. So, you can’t say that the SJA’s actions are justified by the fact that the US Attorney’s office is involved in the case.

  22. Phil Stackhouse says:

    54 – 51, whatever it takes…much like my guns and household wiring. Movie classic…