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.]