Attorney Says 'Vindictive' Navy Purposely Sows Intimidation & Fear in Civilian Counsel
by Barbara Leonard, Courthouse News
WASHINGTON (CN, Nov 18, 2010) - A civilian attorney claims his rights were violated when the Navy Judge Advocate General conducted "a sham 'ethics investigation'" and suspended him from JAG court proceedings for "vindictive" reasons. He calls it part of a pattern within JAG to "create an atmosphere of intimidation and fear, especially among civilian defense counsel," to pressure attorneys from giving clients competent legal advice.
Earle Partington, a Hawaii resident with 41 years of legal experience, sued the U.S. Court of Appeals for the Armed Forces and four members of the Navy JAG Corps: Vice Adm. James W. Houck, Capt. Robert A. Porzeinski, Capt. Robert B. Blazewick and Capt. C.N. Morin.
In his federal complaint, Partington says the conflict with JAG began in 2006 when he represented Stewart Toles in a Navy general court-martial for allegations of violating the "video voyeurism" statute.
Partington says Toles received a reduced sentence because the original charges contained a possible jurisdictional defect.
The charges should have been dismissed on appeal, since the offenses may not have occurred within "special maritime and territorial jurisdiction," Partington says, but he claims the government deliberately misconstrued the record, would not hear oral arguments and upheld the conviction and sentence.
Navy officials then criticized Partington's defense tactics as "unsavory" and launched an inquiry into his professional conduct, according to the complaint.
Partington says the investigation was purely "vindictive" and that he was never provided with a formal complaint or charge sheet.
"In essence, the NJAG's effort to silence Partington via a sham 'ethics investigation' is intended to, and most emphatically does create an atmosphere of intimidation and fear, especially among civilian defense counsel, who pursue a vigorous defense of their clients in court-martial proceedings," according to the complaint.
Partington says his due process was violated, and he was suspended from practicing law before the JAG court for 1 year.
JAG violated its own procedures in the investigation since Partington is not a member of the Navy and not subject to the military's disciplinary authority, according to the complaint.
Partington seeks damages and orders for declaratory and injunctive relief, alleging that JAG lacked statutory authority to discipline him and violated his right to due process. He is represented by Katherine Van Dyck with Griffith Wheat.
Suspended civilian counsel sues, inter alia, Judge Advocate General of the Navy and CAAF
By Dwight Sullivan, NIMJ, December 22, 2010
An alert reader has called our attention to the pending case of Partington v. Houck, No. 1:10-cv-01962-HHK, in the United States District Court for the District of Columbia. Here’s a copy of the complaint, which was filed on 16 November.
Earle Partington was the civilian defense counsel in both the trial and appeal of the case of United States v. Toles, No. NMCCA 200602374 (N-M. Ct. Crim. App. Oct. 20, 2007). NMCCA called portions of the defense’s brief “disingenuous – especially in light of the fact the appellant’s appellate defense counsel making these statements is the same CDC that represented him at trial.” Id., slip op. at 4. The court continued, “He fails to cite to the record to support these assertions, misrepresents the record when he does, and strategically places quotation marks around the word ‘acquitted’ apparently to shield himself from accepting responsibility for using it.” Id.
The court also dropped this footnote:
Based on the CDC’s actions, specifically his advice to the appellant to plead guilty to offenses he did not believe existed, his lack of candor to the trial court, and the misrepresentations made here, we have sua sponte examined whether ineffective assistance of counsel occurred. Although the CDC appears to be “playing loose and fast” with the law, we do not believe he was ineffective at trial, nor do we find any prejudice to the appellant. To the contrary, mainly due to an experienced military judge, the appellant benefited from these actions, in particular the reduction of potential confinement. However, because we are concerned with such unsavory tactics by counsel, we are forwarding this opinion to the Judge Advocate General of the Navy and the Navy’s Rules Counsel for review and action as appropriate.
Id., slip op. at 4 n.5 (internal citations omitted).
According to Mr. Partington’s complaint, ”[d]ue to an ‘administrative oversight,’ the NMCCA opinion was not forwarded to the NJAG until September 22, 2008, nearly one year later.” Complaint, ¶ 39. Disciplinary proceedings then began that ended in Mr. Partington’s suspension from practice in naval courts. On the basis of that suspension, CAAF also suspended him from its bar until 10 June 2011. See In the matter of Earle A. Partington, __ M.J. __ (C.A.A.F. Oct. 26, 2010).
On 16 November 2010, counsel for Mr. Partington filed suit in the United States District Court for the District of Columbia. The defendants include the Judge Advocate General of the Navy and CAAF. The suit seeks Mr. Partington’s reinstatement, as well as damages from specified Navy judge advocates named in their personal capacities, as well as attorney fees. The suit alleges, inter alia, that the Judge Advocate General of the Navy has no statutory authority to suspend civilian counsel from practicing in naval courts, that the regulatory disciplinary procedures weren’t followed, and that the ethics hearing officer had a conflict of interest.
Last Friday, a month and a day after Mr. Partington filed his suit, CAAF denied a petition to reconsider its suspension of him until 10 June 2011. See In the matter of Earle A. Partington, __ M.J. __ (C.A.A.F. Dec. 17, 2010).
We’ll add Partington v. Houck to the growing list of Article III cases involving military justice matters that we’re following.
Discussion … (Interesting discussion points)
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