Saturday, November 12, 2011

And The Court Will Suspend

The Hawaii Supreme Court has imposed a 30-day suspension as reciprocal discipline for an attorney's misconduct in an appeal brief. As will be seen below, the attorney has had an interesting legal career.

The attorney is a civilian who was disciplined by Navy Judge Advocate General and a military court.

The court:

It appears that Respondent...submitted an appellate brief to the United States Navy-Marine Corps Court of Criminal Appeals in Washington, D.C., which omitted material facts necessary to accurately portray the court-martial proceedings that were the subject of the appeal. It further
appears that the Department of the Navy’s Office of the Judge Advocate General imposed upon Respondent...an indefinite suspension from the practice of law in the Department of the
Navy’s jurisdictions, and the United States Navy-Marine Corps Court of Criminal Appeals in Washington, D.C. imposed a one-year suspension upon Respondent...

The court majority found that the lesser sanction was appropriate because of a "lack of clarity"in the record that the attorney had intended to mislead or deceive the military court.

There is a dissent that would impose a suspension of, at a minimum, one year.

The National Institute of Military Justice blog reported that the suspended attorney has filed a suit that alleges he was denied due process and was the victim of retaliation:

The suit seeks [the attorney'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.

The attorney (along with assigned military counsel) had represented a client at a court martial conducted at Pearl Harbor. The findings of misconduct related to the attorney's jurisdictional argument in defending charges of video voyeurism.

The attorney is no stranger to controversy. He represented one of two defendants whose story is recounted in a book by Vincent Bugliosi called And The Sea Will Tell. The book was made into a television movie. His client was convicted in one trial; Bugliosi's client was acquitted in a separate trial.

He sued Bugliosi and others for the way he was portrayed. The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the action:

And the Sea Will Tell describes two controversial trials that resulted in dramatically different outcomes for defendants who were in some ways similarly situated. The purpose of the book is to offer the personal viewpoint of the author concerning the trials. Indeed, readers presumably purchased the book not to read a dry description of the facts but to learn of Bugliosi's personal perspective about the trials since he was both a key participant in the controversy and a well-known criminal defense lawyer. Because the book outlines Bugliosi's own version of what took place, a reader would expect him to set forth his personal theories about the facts of the trials and the conduct of those involved in them. Moreover, lawyers who write popular books, and particularly trial lawyers, are not known for their modesty;  one would generally expect such authors to have a higher opinion of their own performance than of the professional abilities exhibited by other counsel...

Moreover, the subject of the book-the events that took place at Palmyra Island and the outcome of the two trials-is one about which there could easily be a number of varying rational interpretations.   There is no question that the subject matter of the book, and the sources upon which Bugliosi relies in drawing his conclusions, are inherently ambiguous, and we believe that reasonable minds could differ as to how to interpret the events and actions described in it.   Indeed, much of the public excitement surrounding the two trials stemmed from the fact that there is no clear answer as to what precisely occurred at Palmyra Island or as to why the two trials resulted in such different outcomes.

When, as here, an author writing about a controversial occurrence fairly describes the general events involved and offers his personal perspective about some of its ambiguities and disputed facts, his statements should generally be protected by the First Amendment.

The attorney recently secured the acquittal of a client who was charged with animal cruelty after admittedly killing a peacock with a baseball bat. This KHON2 report quotes the client's reaction to the favorable verdict:

"I'm going to Disney World we're going to have peacock souffle."

After listening to the video, it sounds to me that someone other than the defendant made the "souffle" remark. (Mike Frisch)

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