Carl Prine, in Navy Times, reports: SEALs lawyered up during war crimes case, then prosecutors went after their lawyer, 4 April 2019.
“This is an issue that our rules of professional conduct indicate must be brought to the attention of the court by prosecutors,” said O’Rourke. "This protects both the rights of the witnesses and the accused, Lt. Portier.
A cynic might accuse the prosecution here of attacking the lawyer because they are upset with the inability to get access to the clients he represents, and for no other reason. I take a more sanguine view.
It's not unreasonable for a prosecutor to be concerned about how an attorney's actual conflicts of interest at trial may affect a later appeal. Having all that concern put on the record in front of the judge then helps assure later that any conflict is knowingly and intelligently waived--thus waiving the issue on appeal. Should the lawyer be disqualified and new lawyers hired then the prosecution may well be in the same position they're in now; although that may create a new appellate issue of a client being deprived of his counsel of choice by having a judge force the lawyer off of the case.
Another result of disqualification could be negotiated joint-defense agreements among the new lawyers so the lawyers can share information and strategy in a privileged context. On the other hand, a new lawyer for each client may lead to one or another of the co-accused striking a deal and making them accessible to the prosecution. Or, the prosecution could go ahead and arrange for testimonial immunity as requested. Or, the prosecution might go ahead and charge the co-accused thus forcing and ripening the issue.
On the eve of twin war crimes court-martial trials targeting a SEAL and his platoon leader, prosecutors moved Tuesday to rip a trio of holdout witnesses away from a Texas attorney who has been jockeying to win them immunity from future charges.
In a motion filed Tuesday in San Diego, chief prosecutor Cmdr. (sic) Christopher W. Czaplak asked a military judge to investigate “conflict of interest” problems involving Brian Ferguson, an Air Force Reserve attorney, and the three SEAL petty officers he represents.
Ferguson also is the attorney of record for five other SEALs and two explosive ordnance disposal technicians tied to the probe, court filings indicate.The prosecution is arguing that Mr. Ferguson has a conflict of interest with his clients that the military judge should pierce and decline to accept any waivers of conflict from the client.
“This is an issue that our rules of professional conduct indicate must be brought to the attention of the court by prosecutors,” said O’Rourke. "This protects both the rights of the witnesses and the accused, Lt. Portier.
“Lt. Portier is due the loyalty of any attorney who has advocated for him.”
But Czaplak’s motion hints at deeper issues that must be addressed by the court.
If Portier is sentenced to a dismissal from the service, for example, there’s the possibility that he would point to conflicted counsel in his appeal.A first question is whether the issue is ripe as to the Ferguson clients who have yet to be referred to trial. Should the client be referred to trial, as was Portier, then Mr. Ferguson might also withdraw from those cases--issue probably resolved.
A cynic might accuse the prosecution here of attacking the lawyer because they are upset with the inability to get access to the clients he represents, and for no other reason. I take a more sanguine view.
It's not unreasonable for a prosecutor to be concerned about how an attorney's actual conflicts of interest at trial may affect a later appeal. Having all that concern put on the record in front of the judge then helps assure later that any conflict is knowingly and intelligently waived--thus waiving the issue on appeal. Should the lawyer be disqualified and new lawyers hired then the prosecution may well be in the same position they're in now; although that may create a new appellate issue of a client being deprived of his counsel of choice by having a judge force the lawyer off of the case.
Another result of disqualification could be negotiated joint-defense agreements among the new lawyers so the lawyers can share information and strategy in a privileged context. On the other hand, a new lawyer for each client may lead to one or another of the co-accused striking a deal and making them accessible to the prosecution. Or, the prosecution could go ahead and arrange for testimonial immunity as requested. Or, the prosecution might go ahead and charge the co-accused thus forcing and ripening the issue.
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