I meant
US v Jenkins for the cutting and pasting.
From: babu_kaza@hotmail.com
To: dhsullivan@aol.com; neal@puckettfaraj.com;
dwight.sullivan@pentagon.af.mil
CC: haytham@puckettfaraj.com;
kirk.sripinyo@navy.mil; meridith.marshall@usmc.mil
Subject: Notes
Date:
Wed, 8 Jun 2011 23:09:32 -0400
I went over Jones' ruling
again, and here are some notes for the petition:
Factual Errors:
1. FF 11: List of
prosecutors fails to include LtCol Erickson, who, as noted below, made 2 site
visits and took depositions. That fact is also noted on pg 35 of the
ROT.
2. Vokey "continued"
to represent Wuterich and there was no break in representation. Repeated
throughout.
3. FF15: Redmon
recommended against sanctuary. As noted in the motion, Redmon's
endorsement was favorable, noting the recs of the Generals, and that if they
could create a billet, then it was "legit." That Jones did not reference
this is a hard indicator that he did not read the defense motion.
5. MJ still references Mattis as CA, which is
false.
Legal issues:
1. The MJ notes that
Haytham and Vokey transitioned from DCs to CDCs. He also repeatedly
finds that Vokey continued uninterrupted, but in a "more limited fashion."
Even if this were true, I think the MJ talking about a "limited fashion"
is strong evidence to show that there was a "material alteration" in the ACR.
The case law for material alterations of an ACR being prohibited was in
the motion. The prejudice from this material alteration is that it led
to the employmentt at Fitzpatrick, which led to the imputed
conflict.
2. The Effron/Ryan
appearance issue. Redmon does in fact endorse Sullivan's package, in no
small part due to the influence of the General's recommendations. On the
other hand, Favors and by implication Walker are aware of the Vokey issue and
do nothing. And from the SD Trib article the public and therefore the
whole Government was aware but did not intervene.
3. Jones acknowledges
that Meeks erred. Jones acknowledges that the Govt is NOT blameless.
He then finds harmless error under Weichmann because there was no break
in representation. That legal conclusion is incorrect because (1) there
was a break in representation, (2) it is a misreading of Weichmann because
there is a complete severance here, it is not a guilty plea, and the error is
not being waived, and (3) Jones already found that the alleged
continutation of the ACR with Vokey was "limited," so that is de facto
prejudice.
4. Jones finds
that there is "little prejudice" in losing Vokey. We can just include
our boilerplate irreparable prejudice response based on the site visit, etc.
Also, this gets to a foundational issue that I argued in Hutchins:
how can an accused truly show prejudice pretrial? Is he supposed
to completely divulge all defense responsibilities and strategy so
the MJ can determine how important a DC is? Is that what the law should
require?
5. Jones
misunderstands the distinction between an actual and imputed conflict.
Critically, he makes no FF that Vokey obtained privileged or even
confidential info about Salinas during his employment at Fitzpatrick.
Jones cites Navy ethics rules, but wholly fails to reference that Navy
rules explicitly reject the imputed conflict concept. Similarly, he
cites ABA rules without citing Navy rules. And, of course, Navy rules
are controlling.
6. His entire
discussion of recall authority (copied and pasted from the gov't--see US v
Lewis) is fundamentally flawed. It relies on peacetime statutes, and
ignores the independent recall authority under 10 USC 12301(a). The
President has declared a state of emergency every year since 9-11. That
aside, the more fundamental problem is that the Govt never affirmatively says
that they cannot recall Vokey. They just say that it is unlikely.
That decision, and whether having Wuterich's lawyer present at his
court-martial is in the interests of national security or some other
permissible reason, are decisions to be made at the departmental level.
They should at least indicate whether or not they will, and then the MJ
can review their decision. It is not the role of the MJ to step in for
the SecNav and presumptively say what is or is not a national security matter.
Plus, the entire fucking house of cards collapses that a court-martial
cannot be a "national security" matter when their own evidence indicates that
a Marine was recalled precisely for a court-martial. If it can be done
once, it can be done again.
From: DHSULLIVAN@aol.com
Date: Wed, 8 Jun 2011 21:29:10 -0400
Subject:
Re: SitRep
To: neal@puckettfaraj.com;
Dwight.Sullivan@pentagon.af.mil
CC: haytham@puckettfaraj.com;
kirk.sripinyo@navy.mil; babu_kaza@hotmail.com;
meridith.marshall@usmc.mil
Neal, did Erickson know whether Gannon or Sullivan had been to
Haditha?
S/F,
DHS
In a message dated 6/8/2011 9:17:31 P.M. Eastern Daylight Time,
neal@puckettfaraj.com writes:
All,
Long meeting with LtCol Erickson. Bottom line is that as the LSSS
OIC, he has not been asked and does not plan to re-enter the Wuterich case
as TC or Asst TC. He continues to be a resource, of course, as he made
TWO trips over there for the investigation. The second was to do the
depositions.
S/f,
Neal
Neal A. Puckett,
Esq
LtCol, USMC
(Ret)
Puckett &
Faraj, PC
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Rd, Suite 210
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VA 22314
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On Jun 8, 2011, at 9:35 AM, Sullivan, Dwight H CIV USAF AFLOA/JAJA
wrote:
I just spoke with Neal. For tactical reasons, we want to hold off
on filing the motion for interrogatories until at least tomorrow. So
I'll finish that up and circulate it tonight.
Now that the government
and Jones have filed everything required by NMCCA's order, the ball is in
our court. But it will be difficult for us to advance that ball (at
the risk of mixing metaphors) until NMCCA has ruled on our motion for access
to the sealed materials. To let NMCCA know what we're doing, my
current thought is that we should file a motion to provide NMCCA with a
situation report tomorrow telling them where we see the case now and where
we see it going. I'll draft and circulate something tonight. (I
had been planning to use our opposition to the government's motion to lift
the stay as a vehicle for providing a SitRep to NMCCA, but NMCCA eliminated
our ability to do that by denying the motion without waiting for input from
us.)
So it looks like no filing today, with one or two filings
tomorrow.
Semper Fi,
DHS
Dwight H. Sullivan
Senior Appellate
Defense Counsel
Air Force Appellate Defense
Division
(AFLOA/JAJA)
1500 West Perimeter Road, Suite 1100
Joint
Base Andrews, MD 20762
240-612-4773
DSN: 612-4773
Fax:
240-612-5818
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