RE: Motion dates

["Wacker Capt Douglas S" <douglas.wacker@usmc.mil>]

Gentlemen,

I think it is appropriate to inform the MJ that we intend to appeal if we lose the motions on UCI/Wrongful Withdrawal. He is travelling great distances and these cases are definitely throwing a wrench in outward planning of his cases in Okinawa. I don't think it is appropriate to surprise him with this decision, when we can alert him to this situation prior and let him figure out how he wants to handle it.

In regard to LtCol Sullivan as "senior trial counsel," I am researching on CAAF and anywhere else I can access on the Internet to find if his new position as SJA is a conflict of interest. Here is my logic:

-LtCol Sullivan, as a TC, stated at Art 32(1) that Capt Keske was lead counsel.
-Art 32(1) led to referral at MCRD.
-UCI was discovered. LtCol Sullivan was advised of the situation and was at least in some part involved in the decision to transfer the case to 3d MAW (at the very least he was the one to pass the info to Col Richardson and then to BGen Bailey).
-Case was transferred to 3d MAW and Art 32(2) occurred with LtCol Sullivan acting as TC (I don't know if there was a "lead", he probably would say Capt Day is the "lead"), which resulted in a referral of charges.
-At some point this year, LtCol Sullivan became SJA at MCRD (an impartial advisor to the CG (MajGen Bailey) as well as to all of the subordinate convening authorities, including Col Smith, HQSVCBN CO), additionally he is directly responsible for all manpower issues within the law center, to include direction of DCs (although not for fitrep purposes), especially my DC, Capt Hur. Who knows what influence he commands over Capt Hur's career progression, daily life as SDC, as well as office matters involving junior Marines within the Defense Shop, all of whom can be viewed essentially as part of the defense team.
-LtCol Sullivan now has his fitrep written by CoS and CG at MCRD. CoS, CG, and Col Smith are all direct witnesses involved in the UCI/Wrongful Withdrawal Motions. I am not asserting that LtCol Sullivan has done anything wrong in this case, however, his interests are now convoluted in his new position. Yes, he would obviously want to protect his bosses, but at the same time, he was in a separate position as an independent TC before.
-Thus, in a reasonable person's mind, is there a conflict of interest in having the same person remain TC throughout the advent of UCI, a transfer to a new convening authority, and then a billet change to a position as the officer responsible for all members of the law center (including the Defense Shop) as well as a direct advisor to key individuals involved in the matter where a personal interest exists outside of dutiful adherence to the law and professional responsibility (not to say that he WOULD do anything improper), while he remains "senior trial counsel" on the case? 

I need to see if there is any authority to support this position, but if there is anything, I will find it and let you know. I guess this would be called a Conflict of Interest and Request for Removal of Trial Counsel Motion. 

Ultimately, the motions before the court are UCI/Wrongful Withdrawal, Suppression of Evidence/Testimony (Cusack), etc. I think we need to have answers to these issues before proceeding directly to trial.

S/F

Doug

Douglas S. Wacker
Captain, USMC
Future Operations Officer
MWHS-3, 3D MAW
douglas.wacker@usmc.mil
Wk: 858-577-6730
DSN: 267-6730
Cell: 858-401-9392

"Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton 


-----Original Message-----
From: Hur Capt Christian P 
Sent: Wednesday, January 19, 2011 7:20
To: Haytham Faraj; Wacker Capt Douglas S
Subject: RE: Motion dates

I agree.

I also foresee a need for a continuance because we don't have a DNA expert even designated at present.  Our expert will need time to review the DNA evidence in this case.  

Finally, LtCol Sullivan (in his role as senior trial counsel on Doug's case) has indicated that the Government is not going to produce any witnesses for the UCI/wrongful withdrawal motion unless we file a motion proffering what each witness is going to say and why we need them.  Case in point, he denied Maj Shibata.  Essentially, its looking like a need to have a motion before the motion to figure out what witnesses will show.

Christian P. Hur
Captain, USMC
Senior Defense Counsel
Telephone:  (619) 524-8713
Fax:  (619) 524-6784
Address:  Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140

This email may contain Attorney Work Product.  Please delete if you received
this message in error.
  


-----Original Message-----
From: Haytham Faraj [mailto:haytham@puckettfaraj.com] 
Sent: Wednesday, January 19, 2011 4:11
To: Hur Capt Christian P; Wacker Capt Douglas S
Subject: Motion dates

The more I think about the motion dates the more I'm concerned that we will not have the time to file an appeal of the judge's decision.  Thoughts?

 

Haytham Faraj, Esq.

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