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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. 4. FF4 and 5: Vokey did not seek JA assistance or chain of command assistance. He spoke to Col Favors. Also could bring up the impropriety of the MJ relying on an affidavit from a requested witness the Govt failed to produce. Could also reference here the SD Trib article to show public awareness: http://legacy.signonsandiego.com/news/northcounty/20080818-9999-1m18vokey.html 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, |