Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » November 2005 » Sometimes, one's past comes back to haunt one.... in the strangest places!

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11/29/2005: Sometimes, one's past comes back to haunt one.... in the strangest places!

Doing my daily round of my blogroll I made my usual visit of the always interesting Main and Central (a blog by a group of veterans and dealing with military and veterans' concerns), when I came across a reference to one of my more interesting legal cases. In a post advocating that former Representative Randy "Duke" Cunningham (corrupt R-CA) be court martialed for his malfeasance in office, Main and Central blogger Terry Welch (a/k/a Nitpicker) made reference to the case of United States v. Clifford M. Overton, 24 M.J. 309 (USCMA, 1987) in support of the view that Cunningham is subject to court martial jurisdiction.

Cunningham, as you may be aware, is a retired Naval officer, a highly decorated (Navy Cross, two Silver Stars, 15 Air Medals, and the Purple Heart) Naval aviator (who, I have heard, claims that the character of "Maverick" in the movie Top Gun was inspired by his career--whether Cunningham has, in fact, made that claim I don't know firsthand) who was the first US ace of the air war over Vietnam, and apparently the first ace fighter pilot in the history of the US military to score all five qualifying kills with missiles (IIRC, the McDonnell Douglas F-4 Phantom II, the aircraft Cunningham flew in Vietnam, had no guns and was armed solely with air to air missiles in the anti-aircraft role). As a retired officer, he is in fact subject to court martial jurisdiction, and Terry cited the Overton case as authority for that proposition.

Of course, I perked up and paid attention when I saw that citation, because I had the dubious distinction of representing Overton at both his general court martial (conducted at the US Naval Station, Subic Bay, Philippines) and his appeal to the Navy-Marine Corps Court of Military Review. It's not normal for a military defendant to be represented by the same military lawyer at both trial and appeal, however, by the luck of the draw I'd been given orders to the Navy-Marine Corps Appellate Review Activity, Appellate Defense Division, after my tour in Subic Bay ended, and by virtue of my work on some pretrial motions and a petition to the US Court of Military Appeals (USCMA) for a writ of mandamus (a request for USCMA to order the general court martial to dismiss the charges for lack of in personam jurisdiction) during Overton's trial, it was clear that I was so familiar with the issues to be raised on appeal that it made no sense to assign the case to any other appellate defense counsel.

My obligated service in the Navy ended before the Overton case was heard in the Court of Military Appeals or in the Supreme Court, so I wasn't able to represent Overton in either of those august tribunals. Which was ok by me. Among the reasons for that was that, a month or two prior to USCMA issuing its opinion in the Overton case, the US Supreme Court issued its opinion in the case of Solorio v. United States, 483 U.S. 435 (1987), which in one fell swoop overruled the previous Supreme Court precedents of O'Callahan v. Parker, 395 U.S. 258 (1969), and Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355 (1971), which pretty well took away every basis for which we were arguing that the court martial in Subic Bay lacked in personam jurisdiction over Cliff Overton. That made the USCMA decision upholding Cliff's conviction at trial pretty much a no-brainer, and made the ultimate petition for writ of certiorari to the Supreme Court one of those exercises in futility that every defense counsel is, alas, all too familiar with.

Obviously, by virtue of the fact that Terry could cite United States v. Overton to support the proposition that Cunningham is subject to court martial jurisdiction, I didn't exactly win that case. However, as trial losses go (and keep in mind that "winning" for a criminal defense lawyer is relative; since acquittals are so rare you have to count any better than expected result for your client as being a "win"), it was probably the high point of my undistinguished legal career. While we ultimately lost the petition for writ of mandamus at USCMA, the Court did grant our request for a stay of the trial (which was dramatically announced in the middle of the morning's court proceedings, about 15 minutes after the military judge had asked me (very snidely), "Well, Lieutenant Cleavelin, have we heard anything from the Court of Military Appeals, yet?").

The court martial itself lasted over a week, and when the dust cleared Overton's punishment was a mere dishonorable discharge and full forfeiture of his Fleet Marine Corps Reserve retainer pay (for some reason, Fleet Reserve/Fleet Marine Reserve pay is "retainer" pay, not "retired" pay). No confinement/imprisonment whatsoever was imposed by the court. And because the court didn't sentence Cliff to confinement, he continued to receive his retainer pay until the Court of Military Appeals (IIRC) affirmed his conviction (had he been sentenced to confinement of a month or longer the convening authority (Commander, U.S. Naval Forces, Philippines, a two star admiral) could have executed the forfeiture immediately).

At the time, I was on very good terms with the COMUSNAVPHIL Staff Judge Advocate and his staff, and one of the assistant SJAs there told me that the Admiral was sorely pissed when he learned that not only was Cliff Overton not going to prison, but that he was going to continue receiving retainer pay for several years after his conviction.

After managing to both do my job (keeping Cliff Overton out of prison and allowing him to keep sucking off the military teat for four years he wouldn't have otherwise) and pissing off a two star admiral in the process, I obviously reached the high point of my legal career, and there was no way to go but down from there.

But, God, it felt good when it happened.


Len on 11.29.05 @ 08:21 PM CST

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