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Thread: Senior Air Force JAG fired
12-19-06, 02:11 PM #1
Senior Air Force JAG fired
December 25, 2006
Senior Air Force JAG fired
Colonel had been disbarred in Texas, Louisiana in 1980s
By Erik Holmes
One of the Air Force’s top judge advocates general practiced law without a license for more than 20 years.
Late last month, the Air Force caught on and relieved him of command.
Col. Michael D. Murphy, commander of the Air Force Legal Operations Agency, was fired Nov. 30, Air Force officials said Dec. 6. He had been disbarred in Texas in 1984 and in Louisiana in 1985 but apparently never told his commanders, as required by the Air Force Instruction regulating the status of Air Force lawyers, or judge advocates.
“We are an integrity-based organization, and so we trust our people when they assert that” they are qualified, said Lt. Col. Lisa Turner, a spokeswoman for the judge advocate general of the Air Force. “Prior to this, we did not have a system that called for people to prove ... their status, although we have that now in place as of this moment.”
Murphy was placed on leave and will be reassigned to “duties that do not involve the practice of law” pending the outcome of an investigation, Turner said.
Murphy did not respond to a request for an interview.
“This is another in a series of very public black eyes for a group of people who don’t seem to get the picture that there is a problem with the process for picking people for big jobs,” said John “Lou” Michels Jr., a former JAG lieutenant colonel and JAG School instructor who is in private practice.
“The Air Force JAG did not need another high-profile misconduct case by its senior leadership.”
In January 2005, the Air Force’s top military attorney, then-Maj. Gen. Thomas Fiscus, was demoted two grades and ordered to retire as a colonel after receiving nonjudicial punishment on charges of conduct unbecoming an officer, engaging in unprofessional relationships, fraternization and obstruction of justice for deleting incriminating e-mail files from his Defense Department computer system.
But incidents of misconduct remain rare, Maj. Gen. Jack Rives, judge advocate general of the Air Force, said in a statement.
“We have to trust each other absolutely [and] that standard has worked extremely well in the JAG Corps for nearly 60 years,” he said. “We’ve had only a very few cases where someone violated that trust. Any organization of this size is bound to encounter misconduct from time to time. Misconduct involves the actions of an individual. Those actions do not define the entire corps.”
As commander of the Legal Operations Agency, Murphy oversaw the administration of the Air Force’s civil litigation program and criminal justice process.
Previously, Murphy served as general counsel to the White House Military Office from December 2001 to January 2003 and from August 2003 to January 2005, and as commandant of the Air Force Judge Advocate General School from January to June 2005.
Awards and investigation
Among his awards and decorations are the Bronze Star with valor and a Navy-Marine Corps Combat Action Ribbon for his service in Operation Iraqi Freedom during 2003, a senior Air Force officer confirmed.
According to the Bronze Star citation, Murphy was assigned to provide support and security to an Iraqi agent who was helping the coalition secure Shiite support. He also came under fire multiple times while escorting large sums of money that were to be funneled into the Iraqi economy, the citation says.
The Air Force would not comment on whether Murphy will be charged with any crime because the investigation is ongoing.
But Michels said Murphy could be charged with one count of perjury for each case he tried as a prosecutor.
“The perjury is that he’s under oath in front of a judge telling the judge that he has not acted in a manner that might tend to disqualify him,” Michels said. “It’s recited before every trial.”
The requirement to take that oath is in the military’s Guide to General and Special Courts-Martial, which requires a prosecutor to state at the beginning of a trial that he is “qualified and certified” to be a judge advocate.
Each count of perjury carries a penalty of dishonorable discharge, loss of all pay and allowances and up to five years in prison.
Another issue that could resonate throughout the JAG Corps is the possibility that hundreds of cases in which Murphy was involved as a staff judge advocate earlier in his career could come under scrutiny.
Staff judge advocates advise commanders on whether Air Force members should be charged with crimes and what their punishments should be if they are convicted. Several lawyers in the Air Force community have questioned whether there will now be a rash of appeals stemming from cases in which Murphy was involved.
But Air Force officials said there is legal precedent upholding convictions of defendants represented by unlicensed attorneys, and that attorneys don’t have to be licensed by a state bar for a military verdict to be valid.
Eugene Fidell, president of the National Institute of Military Justice and a senior partner at Feldesman Tucker Leifer Fidell, said he believes the convictions are unlikely to be overturned because Murphy did not serve as defense counsel, and so did not prejudice cases against defendants.
“I don’t see a problem there,” he said. It’s “a question about whether he was in a position to render services in a way that vitiates criminal proceedings. ... If he wasn’t a judge and he wasn’t a defense counsel, then the only party that was harmed was the United States government. That doesn’t undermine the convictions.”
But Michels disagrees. He said defense attorneys could ask the Board for Correction of Military Records to throw out convictions or order changes to former defendants’ discharge status because Murphy was not competent to provide legal advice to commanders deciding how to act on cases.
At the least, he said, JAG headquarters will have to review every case in which Murphy was involved. Air Force spokeswoman Jean Schaefer confirmed that a review of Murphy’s role in the legal process is part of the investigation.
All parties — the Air Force and private attorneys — acknowledged that if defense attorneys mount challenges, judges will rule based on the individual facts of each case.
The bigger effect, Michels said, is the failure to uphold the principles of justice and discipline the JAG Corps is supposed to embody.
“This situation damages the perception of both justice and discipline,” he said.
‘Internal processes’ cited
The disbarments came to light and an investigation was launched Nov. 29, said Turner, the Air Force JAG spokeswoman. Murphy was relieved of command the next day.
The questions about Murphy’s background initially surfaced “through internal processes,” Schaefer said. She did not say whether the internal processes were routine.
Murphy, a graduate of the University of Texas School of Law, first ran into trouble in 1981, when he failed to file an appeal on time for a client convicted of burglary, according to court documents. He then lied to the client by telling him that a hearing was pending.
Texas sued Murphy in August 1982, accusing him of professional misconduct. A year later, as a result of that suit, Texas suspended Murphy’s law license for seven years. But in a January 1983 application to be admitted to the Louisiana bar, he stated under oath that he had never been sued nor had he been the subject of a disciplinary action.
Both Texas and Louisiana permanently disbarred Murphy for lying on his Louisiana bar application; Texas did so in May 1984 and Louisiana in September 1985.
Murphy joined the Air Force in November 1983, after being suspended by Texas but before being disbarred by either state.
One of the focuses of the internal investigation will be to determine what policies regarding judge advocate qualifications were in effect when Murphy entered the Air Force, Schaefer said, and if he might have been eligible even with the Texas bar suspension.
Staff writer Rod Hafemeister and Gannett News Service staff writer Nicole Gaudiano contributed to this report.
IN LOVING MEMORY OF MY LATE HUSBAND, SSgt Roger A. Alfano, USMC
ONE PROUD MARINE
Once a Marine...Always a Marine
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