Haytham,
Solid copy. Talk to you at 1430 EST.
~Russ
-----Original Message-----
From: Haytham Faraj [mailto:haytham@puckettfaraj.com]
Sent: Tuesday, November 08, 2011 10:01
To: Shinn Capt Scott R
Subject: RE: US v. Capt Rowe
Hi Russ,
I do remember you. I just called your office. Col baker answered. I am attaching a few documents for you to peruse. I have some appointments this morning but should be free to talk around 1430 this afternoon. Please call me at my cell phone. 760-521-7934.
Vr,
-----Original Message-----
From: Shinn Capt Scott R [mailto:scott.shinn@usmc.mil]
Sent: Tuesday, November 08, 2011 8:48 AM
To: haytham@puckettfaraj.com
Subject: US v. Capt Rowe
Haytham,
I'm not sure if you remember me or not, but we met at the Mess Night at the CDC Conference in Miramar. I've been detailed as the military counsel for Capt Rowe by Col Baker. As the case is rapidly approaching trial, I'd like to discuss the case with you very soon. As of right now, I only have the most recent charge sheet. The case file should get delivered to me tomorrow. Maj McConnell has given me an overview of the case, but I don't have many of the details.
Whenever you are able to discuss the case, I'm available.
V/r,
S. Russell Shinn
Captain, US Marine Corps
Officer-in-Charge
Defense Counsel Assistance Program
Marine Corps Defense Services Organization
703.614.0885 (w)
703.470.0671 (c)
"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 OIC, DCAP. 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.
-----Original Message-----
From: Baker Col John
Sent: Monday, November 07, 2011 17:11
To: Shinn Capt Scott R
Subject: FW: US v. Rowe Telephonic 802
Russ,
I'm detailing you to this case - you'll see a detailing letter shortly. Haytham Faraj is the lead counsel. Trial dates are at the bottom of this e-mail.
S/F,
Col Baker
----- Original Message -----
From: Baker Col John
To: Greer LtCol Christopher M; Riley Col Donald J Jr.
Cc: Jasper Maj Thomas F
Sent: Mon Nov 07 12:38:29 2011
Subject: RE: US v. Rowe Telephonic 802
Chris,
I understand your frustration. This latest, last minute unexpected development frustrated me as well and has highlighted some significant gaps in communications within the DSO that we are addressing and correcting. While not ideal, we've come up with a local solution to avoid further delay and at no additional cost - upon receipt of a release letter from Capt Rowe, I will detail the case to Capt Shinn, who just checked into my office.
Here's how we got here:
Friday, I learned that Capt Rowe had requested under RCM 505(d)(2)(B)(ii), RCM 506(c) and Rule of Prof Conduct 1.16 ("A client has a right to discharge a covered attorney with or without cause.") that Maj McConnell be excused as his detailed defense counsel and a new counsel be detailed. I discussed the issue with his civilian counsel late Friday afternoon and Tom Jasper confirmed things with Capt Rowe yesterday. Apparently the MJ approved the release this morning. For what it's worth, after what I learned Friday, I was prepared under the unique sets of facts of this case, which includes information covered by MRE 502 that I am not a liberty to disclose, to find good cause to sever the A/C under RCM 505(d)(2)(B)(ii) and I'm confident that if called to rule on the issue at an Art 39a session, an MJ would have severed the relationship under RCM 506(c).
To address your larger concern -- in general, I agree and for a variety of reasons, I don't see this fact pattern repeating itself in the future. CDC Policy Memo 7-11 dated 8 Oct 11 contains a specific prohibition against an SDC who writes fit reps on subordinate DCs from detailing themselves to represent clients who have a conflict of interest with a client of a subordinate defense counsel for whom the SDC is the reporting senior. The policy memo also clearly explains to counsel that providing certain types of advice, such as IRO advice, admin process advice, and Art 31 advice does not form an attorney-client relationship.
Any failings in the delivery of defense counsel services here are mine -- we've learned some important lessons at a relatively low cost (two week delay), that in the end will improve the business practices of the DSO.
Semper Fi,
Colonel John G. Baker, U. S. Marine Corps Chief Defense Counsel of the Marine Corps Marine Corps Defense Services Organization
"Marines Defending Marines"
Office: (703) 614-0885; Cell: (703) 944-2580
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.
-----Original Message-----
From: Greer LtCol Christopher M [mailto:christopher.m.greer@usmc.mil]
Sent: Monday, November 07, 2011 10:28
To: Riley Col Donald J Jr.; Baker Col John
Subject: FW: US v. Rowe Telephonic 802
Gentlemen,
The idea that an conflict exists because a subordinate DC in the defense shop consulted with a witness in a case where the SDC is detailed is going to take us to a place where we do not want to go. Soon, each office will need to farm out any case where any DC has talked to anyone remotely involved in a case. Capt White provided advice to Lt Klay regarding her resignation. I fil to see how a conflict now exists in this case. Maj McConnel has no interest that is adverse to Capt White. What am I missing here?
LtCol Greer
MCBQ SJA
-----Original Message-----
From: Combe Capt Peter C
Sent: Monday, November 07, 2011 10:12
To: haytham@puckettfaraj.com; Mcconnell Major Matthew N
Cc: jeffrey.hoey@navy.mil; Hale LtCol Charles C; Hoover Maj Christopher M; Owsley SSgt Jason L
Subject: US v. Rowe Telephonic 802
Good morning Gentlemen,
This morning counsel had a telephonic 802 with LtCol Hale. In this 802 we discussed the following:
1. Due to developing case law with regard to conflicts of interest, it has become apparent that Maj McConnell, the detailed defense counsel, has a conflict of interest. Based on that conflict, the accused has released Maj McConnell, and he will be replaced by a new detailed defense counsel.
2. This conflict and release of counsel has lead to the defense requesting a continuance until the week of 28 November. The military judge indicated that due to the detailing of new counsel he is granting the defense continuance request and we will begin trial at 1300 on 28 November.
3. This new trial date necessitates the following trial milestones:
- 11 Nov 2011, motions due.
- 16 Nov 2011 (1200), motion responses due.
- Pretrial 39a is scheduled for 18 November. No specific time was set, but the defense indicated a preference for the morning.
Very Respectfully,
Peter C. Combe II
Capt, U.S. Marine Corps
Trial Counsel
Office of the Staff Judge Advocate
Military Justice Office
Marine Corps Base Quantico
3250 Catlin Avenue
Quantico, VA 22134
Comm: (703) 784-0037 DSN: 278
Fax: (703) 784-0035 DSN: 278
NOTICE: This electronic transmission contains privacy sensitive information, attorney work-product or information protected under the attorney-client privilege. It is confidential, legally privileged and intended for use only by the individual or entity which is entitled to receive this transmission for official use only. Any misuse or unauthorized access is strictly prohibited and may result in both civil and criminal penalties. Do not release this information without prior authorization from the sender. If this has inadvertently reached the wrong party, please delete all materials pertaining to it immediately and notify the sender at the email address or phone number above. This electronic transmission is also not 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.
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