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Neal, Somehwat related, if this does become a "do-over," I think when you go back to LtCol Jones you can cite case law to support Haytham's concerns about how being a pro bono civilian is not a sufficient replacement for being a military detailed counsel. The specific language from case law is that "once entered into, the relationship between the accused and his appointed military counsel may not be severed or materially altered for administrative convenience." See Catt, 1 M.J. 41; Murray, 45 CMR 253; Iverson, 5 M.J. 440; Tellier, 32 CMR 323. You can lay out on the record all of the burdens of being a pro bono civilian vice detailed defense counsel, and how that qualifies as "materially altering" the attorney-client relationship, even if there is no severance. Of course, Vokey was severed, but this would give Haytham legal grounds for complaint. The Government "materially altered" his ACR when they forced him into retirement. s/f Babu Subject: Re: Wuterich From: neal@puckettfaraj.com Date: Wed, 30 Mar 2011 15:01:31 -0400 CC: babu_kaza@hotmail.com; kirk.sripinyo@navy.mil; haytham@puckettfaraj.com To: Dwight.Sullivan@pentagon.af.mil It would help us immeasurably to get declaratory judgment that the A/C relationship WAS improperly severed. Otherwise we're back to hearing Gannon argue that Vokey's relationship continued until he raised the conflict issue and having Judge Jones AGAIN adopt that argument wholesale. If CAAF says it's broke, then Judge Jones has to accept that as a matter of law and we can turn to asking for abatement as a remedy. I swear they still believe that Vokey "never left the case." Semper fi,
Neal
Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
1800 Diagonal Rd, Suite 210
Alexandria, VA 22314
703.706.9566
The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 888-970-0005 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. On Mar 30, 2011, at 2:53 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote: Kudos again to Babu for his outstanding argument today. I understand that audio of the argument is already up on CAAF’s website. I’ll send a link momentarily.
In the meantime, it took me less than 2 minutes to find an opinion indicating that granting declaratory relief is permissible in a case proceeding under the All Writs Act – and, even better, the opinion is written by then-Chief Judge Posner:
“Since the settlement stands, the judge's power to issue the injunction (and related declaratory relief) against these lawyers' enforcing the contingent-fee contracts or liens based upon them was a proper exercise of the court's jurisdiction under 28 U.S.C. § 1651 (‘all writs’) to prevent interference with its orders.” In re Factor VIII, 159 F.3d 1016, 1020 (7th Cir. 1998).
I think we should probably move to cite supplemental authority in answer to that question from CJE. Unless anyone else wants to take the lead, I’ll draft up something tonight and circulate it.
Semper Fi,
DHS |