Neal,
I hope you are enjoying some downtime as you prepare for the upcoming Wutterich trial. I have an issue regarding Major Marshall's fitness report that I'd like to discuss.
Major Marshall is due for a fitness report and both her RDC (LtCol Paul Atterbury) and I are, absent a knowing and intelligent waiver, conflicted from writing her fitness report based on our prior assignment as trial counsel with Legal Team Charlie. My time with Charlie ended in August 2007 and LtCol Atterbury's ended much later. We were both involved, in varying degrees (at times I was very involved in this case) in the prosecutorial efforts related to SSgt Wutterich during our time with Legal Team Charlie and while we never made appearances on the record in this case, we certainly acted in a prosecutorial capacity and took actions significantly adverse to your client, SSgt Wutterich.
Neither LtCol Atterbury or I have any idea what, if anything, Maj Marshall has done between June 1 and Jan 1 on SSgt Wutterich's case besides locating an office for your team to work from, and any fitness report we would write would not comment on her duties defending SSgt Wutterich, but even with those caveats, any fitness report action we would take on Maj Marshall's report would create, absent a waiver, a conflict of interest.
We avoided all conflict issues with Maj Marshall's annual fitness report last June by having Col Dwight Sullivan (reserve CDC) act as the reviewing officer for the report written by LtCol Patricio Tafoya. The easiest thing to do is avoid the conflict again and have Col Sullivan act as the RS and MajGen Ary act as her RO (our reserve RDC-W, LtCol Cord, is also conflicted because he represented a co-accused). While this is easiest, it's probably not fairest to Maj Marshall because MajGen Ary will give her a non-observed report, while I would give her an observed report with favorable comments and ranking.
If SSgt Wutterich is willing to waive the conflict of interest of LtCol Atterbury writing and me reviewing or Col Sullivan writing and me reviewing Maj Marshall's fitness report and the TCs do not object, we would execute that COA if the waiver were executed in writing and disclosed to and accepted by the military judge on the record. The NMCCA issued specific guidance this summer on what's needed in a situation like this "when a defense counsel is assigned duties that place him in the rating chain of the trial counsel, defense counsel must advise the client and any co-counsel of the potential conflicting interests and then arrange for the client to be advised by a disinterested party as to the necessity for a waiver. Defense counsel must notify the military judge of the potential conflict; failing that, trial counsel, as an officer of the court, must do so. Only when the military judge is satisfied that the client understands the right to conflict-free counsel and waives any disability may the trial progress; however, in the interests of justice, the military judge may consider other remedies such as disqualification of the trial counsel from further participation, or alteration of the rating chain of the defense counsel, See United States v, Biagase, 50 M,J, 143, 148 (C.A.A.F. 1999). See also United States v. Gore, 60 M.J. 178, 186 (C.A.A.F. 2004) (judge's powers generally)." US v. Lee, 70 MJ 535, 541 (NMCCA 2011).
I've CCed the remaining detailed TCs, LtCol Sullivan and Maj Gannon, for their SA.
I'd prefer that we keep all communications related to this issue in writing, so that an accurate record can be maintained.
Happy New Year/
Semper Fi,
Colonel John G. Baker, U. S. Marine Corps
Chief Defense Counsel of the Marine Corps
Marine Corps Defense Services Organization
755 S. Courthouse Road
Building 2, Suite 1000 (HQMC/JAD)
Arlington, VA 22204-2482
(703) 944-2580 (c); (703) 604-0573 (o)
"Marines Defending Marines"
ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in or attached to this communication is confidential, legally privileged and intended for use only by the individual or entity to which it is transmitted. Any other use of this communication is strictly prohibited. Do not disseminate without the approval of the Chief Defense Counsel of the Marine Corps. This e-mail and all other electronic or voice communication from this address are for informational purposes only. No such communication is intended by the sender or the agency to constitute either an electronic record, or an electronic signature, or to constitute any agreement by the sender to conduct a transaction by electronic means. If you receive this e-mail in error, please permanently delete the original and any other copies or printouts of this e-mail, and notify me immediately at the above e-mail address or phone number. To the extent the information contained in or attached to this communication contains Privacy Act information, that information is for OFFICIAL USE ONLY.
Attachment:
smime.p7s
Description: S/MIME cryptographic signature