An alert reader has called our attention to the pending case of Partington v. Houck, No. 1:10-cv-01962-HHK, in the United States District Court for the District of Columbia.  Here’s a copy of the complaint, which was filed on 16 November.

Earle Partington was the civilian defense counsel in both the trial and appeal of the case of United States v. Toles, No. NMCCA 200602374 (N-M. Ct. Crim. App. Oct. 20, 2007).  NMCCA called portions of the defense’s brief “disingenuous – especially in light of the fact the appellant’s appellate defense counsel making these statements is the same CDC that represented him at trial.”  Id., slip op. at 4.  The court continued, “He fails to cite to the record to support these assertions, misrepresents the record when he does, and strategically places quotation marks around the word ‘acquitted’ apparently to shield himself from accepting responsibility for using it.”  Id.

The court also dropped this footnote:

Based on the CDC’s actions, specifically his advice to the appellant to plead guilty to offenses he did not believe existed, his lack of candor to the trial court, and the misrepresentations made here, we have sua sponte examined whether ineffective assistance of counsel occurred. Although the CDC appears to be “playing loose and fast” with the law, we do not believe he was ineffective at trial, nor do we find any prejudice to the appellant.  To the contrary, mainly due to an experienced military judge, the appellant benefited from these actions, in particular the reduction of potential confinement. However, because we are concerned with such unsavory tactics by counsel, we are forwarding this opinion to the Judge Advocate General of the Navy and the Navy’s Rules Counsel for review and action as appropriate.

Id., slip op. at 4 n.5 (internal citations omitted).

According to Mr. Partington’s complaint, “[d]ue to an ‘administrative oversight,’ the NMCCA opinion was not forwarded to the NJAG until September 22, 2008, nearly one year later.”  Complaint, ¶ 39.  Disciplinary proceedings then began that ended in Mr. Partington’s suspension from practice in naval courts.  On the basis of that suspension, CAAF also suspended him from its bar until 10 June 2011.  See In the matter of Earle A. Partington, __ M.J. __ (C.A.A.F. Oct. 26, 2010).

On 16 November 2010, counsel for Mr. Partington filed suit in the United States District Court for the District of Columbia.  The defendants include the Judge Advocate General of the Navy and CAAF.  The suit seeks Mr. Partington’s reinstatement, as well as damages from specified Navy judge advocates named in their personal capacities, as well as attorney fees.  The suit alleges, inter alia, that the Judge Advocate General of the Navy has no statutory authority to suspend civilian counsel from practicing in naval courts, that the regulatory disciplinary procedures weren’t followed, and that the ethics hearing officer had a conflict of interest.

Last Friday, a month and a day after Mr. Partington filed his suit, CAAF denied a petition to reconsider its suspension of him until 10 June 2011.  See In the matter of Earle A. Partington, __ M.J. __ (C.A.A.F. Dec. 17, 2010).

We’ll add Partington v. Houck to the growing list of Article III cases involving military justice matters that we’re following.

27 Responses to “Suspended civilian counsel sues, inter alia, Judge Advocate General of the Navy and CAAF”

  1. Anon says:

    There is nothing the Navy hates more than suits that try to mess with the internal workings of the Navy. I have no idea of the merits but I bet OJAG is pissed off.

  2. Anonymous says:

    The Navy hates that because OJAG is accustomed to operating with impunity (and without supervision).

    It would be worth looking at whether there are similar collateral attacks in Article I court.

  3. Charles Gittins says:

    How can only the civilian counsel be guilty if the brief was also signed by military appellate counsel? And, how can points of legal argument be “false statements”? I agree with Earle (who I worked with as a military defense counsel, years ago in my first DC assignment) that he is being retaliated against for coming up with a pretty good strategy (along with the two military counsel on the case, by the way). I think it is perfectly valid to raise the failure to state an offense claim after jeopardy has attached so that the Government cannot “fix” its mistake to the prejudice of the client. The NJAG may have bit off more than it can chew on this one.

  4. Charles Gittins says:

    And, oh by the way, jurisdictional defects can be raised at any time.

  5. Anonymous says:

    I’m sure the Government’s response will begin to complete the picture of what actually happened, but it seems impossible to believe someone can be appointed to conduct an investigation…and then not interview *anyone* involved.

  6. Anonymous says:

    Anyone with an opinion as to the juridiction of D.C.C. to provide the type of relief Earle desires? Maybe its as simple as federal question but something smells off.

  7. Bill C says:

    I agree with Charlie. I have used this tactic myself, in a case where I felt there might be a jurisdictional defect. To do otherwise is to give the government an opportunity to cure the defect, and put your client at jeopardy. I am sure there are two sides to this story, but on its face I don’t see how this passes the smell test.

  8. W says:

    I have always been amused by the argument that jeopardy attaches to language that does not actually state an offense. Ok. So when a proper specification is later brought forward, then what? The next argument I usually hear is that double jeopardy applies. As to what exactly?

    Either the original specification stated that the accused committed a crime, or it didn’t. The argument that it did both seems patently illogical.

  9. Anon says:

    Back in the 2005-2008 time-frame, the NMCCA judiciary often issued cranky opinions, gratuitously sniping at defense counsel. The judges were not always intellectual giants and seemed to have an inflexible view of advocacy – not understanding the meaning of a “colorable claim.” Only 1 of the 3 judges on the panel read the trial transcript, so the other 2 relied on the bench brief. So one could never rely on the purported “mischaracterization” allegations made so frequently. And in those years, NMCCA decisions were frequently overturned. Perhaps the combination of appellate delay and pressure from case-overload, combined with the previous scandal of plagiarized decisions, copied verbatim from government briefs, contributed to the lack of judicial temperment. The situation seems much better now.

  10. ksf says:

    Mr. Gittens,

    I had a case where a spec for conspiracy did not allege the overt act for the conspiracy. The military judge caught it and sua sponte called for a motions hearing, much to my chagrin. I raised the possibility that I could have waited until the panel was seated and evidence introduced, then made a 917 motion. He intimated that strategy was a weak one, and when I disagreed, I got a huge eye roll.

    Regarding the ethical issue, does the Marine Corps script ask the Accused or Defense Counsel whether or not they believe the Specifications state an offense? If so, and he answered no, then immediately subsequent to the providence hearing lodged his motion to dismiss, then they might have a point. It certainly would have looked better had he waited until he got the transcripts, then raised the issue. The opinion makes it sound like he did the former, as opposed to the latter.

    If that question was not asked, then I agree that this is another perfect example of the Man tryin’ to keep a good civilian down, so they can get their Servicemember, ala Carolyn Martin’s case.

    KSF

  11. Bill C says:

    KSF: Frequently, the MJ will ask whether either side is aware of any jurisdictional impediment to the court. If asked, counsel obviously has an obligation to respond truthfully. I have not seen a MJ ask if the spec states an offense.
    Approximately two years ago I had an NMCCA brief, with what I believed were two good issues. I did not ask for argument, but NMCCA ordered argument as part of “Project Outreach.” They used the opportunity to lambast me in front of 200 law students about what a scoundrel my client was and how weak my arguments were. Then they softballed the government for 30 minutes.
    FWIW, CAAF later granted review of one of these “weak” issues, although they did affirm.

  12. Charles Gittins says:

    No . . . that question is not asked in the CM Script, and even if it were, my response would be to the effect that it is not my job to proof the Government’s charges and I would decline to do so. I have raised failure to state an offense — just after arraignment or just before opening statements — and won this issue in so many cases that it is hard to recall all of them. For example — the Navt regulations frat article governs conduct between officers and enlisted and enlisted and enlisted. It says nothing about conduct between enlisted personnel and midshipmen/cadets, which legally are neither officers no enlisted. Motion to dismiss granted for failure to state an offense. Subsequently, USNA published a regulation that proscribed the conduct. But it didn’t resurrect the charge because it was ex post facto. I have never had a military judge look at me sideways about raising such an issue while dismissing the specification after giving the Government a chance to argue why I am wrong. That is a DC’s job, to wreck the Government’s case. Any effort to do less is ineffective in my view. Just my $.02.

  13. Michael Lowrey says:

    The complaint states that the officer that conducted the ethics investigation into Partington, a Honolulu CDC, was the CO of the Naval Trial Service Office, Pearl Harbor, who surprised all TC in Hawaii. If that’s correct, how is this not a conflict of interest?

  14. Cheap Seats says:

    Question for the crowd-why some in personal capacity and others in professional capacity? Outside of scope of regulation?

  15. Bill C says:

    Cheap Seats: This is fairly common in litigation against the government and covers the plaintiff in case the individual’s actions are determined to not be in the scope of their employment. In all likelihood, the Federal Government will step in as the defendant.

  16. Anonymous says:

    Hasn’t the JAG always had the authority to discipline counsel who practice before Navy Courts? It has happened in the past, in several instances. Also, it seems that there have been several active duty counsel disciplined lately as well, so his increased (if it is increased) focus on supervising counsel conduct isn’t just restricted to civilians.

  17. Anonymous says:

    This brief is priceless!

    For example: “73. Specification 7 provides: “the charged offenses for these specifications were
    dismissed.”
    74. The above-referenced statement is not statement of fact but is legal argument. As a matter of law, this statement cannot be true or false.”

    Sure seems like a statement of fact to me, but maybe English is my second language.

  18. Anonymous says:

    Anon 1018: There are quite a few people who disagree with your view that NMCCA is staffed with better judges these days. Cranky opinions? It’s still hapenning. And the present court has never met a sexual assault case under the new 120 they did not want to bounce on factual sufficiency grounds. If you read through those opinions very carefully, they make a mockery of that portion of the analysis which makes allowances for not having observed the witnesses. It’s sloppy application of the law that makes for a JV appellate system. Read Maksym’s concurrences in two cases bounced on the same date a few months ago where he “substantially replicates” his concurrence in both opinions and essentially says “I think we have a real victim in this case….” In the Hutchins case which essentailly indicted the Marine Corps, the three USMC judges were noticeably AWOL when many of the other judges wrote something. It would have been helpful to see what any of the three thought about the issues since it was the biggest case coming out of Iraq along with Wuterich. They need new people over there.

  19. Anonymous says:

    Anon 1309: The JAG has the authority to suspend civilian and military counsel and, for that matter, TC as well as DC.

  20. Charles Gittins says:

    Anonymous 1:52: I think that is what we are going to find out — whether there is authority, absent a statute that says so (and there is not, as the Complaint points out) — that authorizes TJAG (regardless of service) by regulation to discipline or suspend a civilian from the practice of law absent an express agreement between the counsel involved and the TJAG. So far, I have never been required to sign anythign that remotely indicates that I am subject to Navy regulations, much less JAG regulations in order to practice before a military court or administrative body. My authority to practice in military proceedings does not derive from any military status; it derives from the fact that I am admitted to practice law before the highest court in a state of the D of C. That is one reason that a civilian counsel is sworn at every appearance in a court-martial. I think Earle may have a point and it will be interesting to see how it plays out.

  21. Friend says:

    Concur with CG that it will be interesting. I believe that each service’s JAG is tasked via statute with their service’s erstwhile courts-martial system and may develop rules for their administration. The USN JAG’s Uniform Rules of Court and Instruction on Professional Ethics (5803.1C) are interesting reads. If nothing else, potential woe to a “covered” defense attorney who fails to provide civilian counsel with the “Rules”. Hmm- yet another thought – doesn’t each jurisdiction have its own rules for practice as well as admission even pro hac vice? Seems potentially true that the JAG could do it – whether the USN JAG effectively has, well as CG said – we’ll see. I don’t think it gives a civilian counsel a free trip in a military courtroom…@ attny still has a state bar to which they must still answer…

  22. Friend says:

    How about some more speculation….

    Assumes Earl wins vs USN JAG. JAGs from all services brings their admin hammers down and they shore up, fix up, iron proof whatever cited deficiencies regarding “non-covered” attorneys may exist.

    Hmmm.

  23. loco cravat says:

    The CO of the trial counsel in the case for which Earle is alleged to have been unprofessional is appointed to investigate him. In 1997 the Navy ended the incestuous nature of the TC/DC command relationship. I thought. Sad, very sad. There may well be additional facts to round out the issues. But I can’t think of one fact “or legal argument” that looks well when its the actual prosecutor investigating the defense. Sad because I have a high regard for all named individuals. The Rob Blazewick I used to know would have declined the assignment citing the perception of a conflict of interest.

  24. loco cravat says:

    And agree w/Charlie. If one goes all who signed go. Unless there is a letter that says I request to be recused. And which the court has denied.

  25. Code 46 Alum says:

    When was the last time a trial counsel was disciplined? What happened to the TC and SJA who conpired to “out” a military judge?

  26. Dew_Process says:

    The underlying question here, which the complaint hints at, but does not directly address is, what is the scope of the Navy TJAG’s power under 10 USC 5148, the statutory basis for the position of Navy TJAG?

    It, at least facially, does not authorize “rule-making” power, the authority to discipline civilian counsel, much less investigate them, or the power to suspend them from the practice of law before the USN.

    Using the Clinton v. Goldsmith analogy, if TJAG’s “jurisdiction” is not statutorily authorized, then there simply is no jurisdiction by TJAG to do anything to a civilian counsel except perhaps refer the matter to his State Bar.

  27. Friend says:

    OMG – I hate to say this but…it does raise the issue of what does “discipline” mean? Sure, the JAG cannot pull a license from a state – but does the JAG have to let some civilian counsel play in his sandbox if that counsel flaunts the JAG’s rules? Hmmm.??