Defense Articles

Introduction

For the federal government to continue to do business with a private company that has a documented record of defrauding the government and abusing taxpayer money is unconscionable.

–Congressman Bob Barr (R-GA), 23 August 2001

Perhaps the greatest threat to a government contractor following the discovery of an employee’s bad act or omission is the possibility of the company’s suspension or debarment. The prospect of being barred from future work or the rescission of current contracts is a serious one. When a contractor is suspended or debarred, society often perceives the contractor as corrupt and the consequence as punishment. But suspension and debarment are not imposed for purposes of punishment. Instead, they are administrative remedies that permit agencies to exclude contractors from federal procurements and nonprocurement programs when necessary to protect the government’s interest and to ensure compliance with statutory goals. (2) The goal is to maintain the integrity of the procurement system, to spend taxpayers’ dollars wisely, and to ensure that contractors act properly.

To these ends, the Federal Acquisition Regulation (FAR) requires contracting officers to make an affirmative determination of responsibility before any federal purchase or award. (3) Responsibility spans a number of factors including the contractor’s record of performance, integrity, and business ethics. (4) Suspension and debarment decisions are merely “the final straw in the examination of responsibility issues,” (5) and focus on whether the contractor acted responsibly and whether it is presently responsible. (6) Such decisions frequently require an agency debarring official to examine such factors as contractor integrity and honesty; the quality and reliability of the items supplied; the risk of harm to the soldier or citizen; the impact of exclusion from future procurements; and other contract-performance related issues. Debarring officials must also determine whether the conduct of a contractor’s employee or subcontractor should be imputed to the contractor. Finally, even if a contractor is suspended or debarred, those exclusions may be waived when compelling reasons exist, such as a lack of alternate sources, meeting urgent needs, or national defense requirements.
(7) In July 2003, the Air Force (AF) suspended three of Boeing’s Integrated Defense System business units (8) and three of its former employees. (9) The suspensions were based on an AF investigation which concluded that Boeing committed serious violations of the law. (10) According to a Department of Justice (DOJ) press release issued in connection with its criminal case: (1) Boeing possessed an extraordinary amount of rival Lockheed Martin Corporation’s (Lockheed Martin) proprietary data during the 1998 Evolved Expendable Launch Vehicle (EELV) (11) competition; (2) the data was capable of providing great insight into Lockheed Martin’s cost and pricing; and (3) Boeing failed to disclose to the AF the full extent of the data in its possession for approximately four years. (12)

The Boeing suspension sent a message throughout the procurement community that large defense contractors are not immune from suspension or debarment; previously, interest groups had argued that such companies, were in practice, immune. (13) When Boeing’s suspension was twice lifted to allow it to receive awards, (14) interest groups then argued that such action seriously eroded any deterrent effect of the AF’s suspension. (15) This conclusion is understandable but it is mistaken. The drastic consolidation of the defense industry over the last decade makes it difficult, but not impossible, to impose a suspension or debarment on mega-defense contractors, like Boeing, Lockheed Martin, or Raytheon. (16) When considering such action, agencies must consider not only the traditional mitigating factors, (17) but also the harsh reality that the exclusion may ultimately be waived, by necessity, if there are no other viable sources.

Continued consolidation of the defense industry poses difficult problems for suspension and debarment officials. This article sets forth the basis and procedural requirements for imposing a suspension or debarment, and the factual basis for the AF’s suspension of Boeing. Next, this article examines the problem of using the traditional suspension and debarment remedies to exclude large defense contractors, and then discusses a new approach for crafting remedies aimed at developing alternative sources, when agencies foresee continued business dealings with mega-defense contractors.

Suspension and Debarment

Background

Overview of Procurement Regulations

Federal Acquisition Regulation 9.103 requires contracting officers to make a determination of responsibility before making any purchase or award. (18) Some of the standards listed for consideration are unique to the needs of a particular procurement, such as having the necessary production equipment or meeting a required delivery schedule. (19) Other standards apply to all contracts like having “a satisfactory record of integrity and business ethics.” (20) When a contracting officer determines that a contractor is “nonresponsible” that determination applies only to that particular award. (21) In such cases, the contractor is free to compete for other awards.

Editor’s Note: This article first appeared in THE JOURNAL OF LIBERTARIAN STUDIES, Vol. 5 (Summer 1981), pp. 313-325. Footnotes have been deleted from the version printed here.]

During the last 350 years of constitutional and political struggle in England and the United States, perhaps the most libertarian image to be invoked by political theorists has been the comparison of existing, so-called “legitimate” governments to “organized gangs of banditti, pirates, highwaymen, and robbers.” Such metaphors have been a constantly recurring theme because the central thrust of libertarian thinking is to oppose any and all forms of invasion against property rights of individuals, in their own persons and in the material objects they have voluntarily acquired. The Levellers and other opponents of King Charles I and Oliver Cromwell were among the first to challenge the legitimacy of governments as being tyrannical and unjust. The rebels in the American colonies based their revolt against the English Crown on similar grounds of natural law, as outlined in the Declaration of Independence. Early antislavery radicals in both countries extended their libertarian arguments against slavery and challenged any government that sanctioned a violation of man’s natural rights. Propelled by the logic of the natural law tradition and the events of the American Civil War, Lysander Spooner relied heavily on the “criminal” metaphor to buttress his arguments for individualist anarchism.

The doctrine of natural liberty is ultimately grounded on two premises which are necessary to the understanding of why governments are “criminal.” By the self-ownership axiom, every individual has an absolute right to his or her own mind and body and the labor thereof; i.e., each person has the right to control that mind and body free of coercive interference. By the homesteading axiom, the first user, the first person who transforms and uses previously unclaimed and unused resources, becomes their absolute owner. Since people must live in a particular place and their labor must be applied to the material objects around them, they rightfully become the owners of hitherto unclaimed and untransformed natural resources. As defined by libertarianism, freedom is a condition in which a person’s ownership rights of his own body and of his legitimately (according to libertarian principles) acquired material property are neither invaded nor aggressed against. Crime, in the same context, is an act of aggression against these property rights, either in an individual’s own person or in his materially owned objects.

Most people would probably support the libertarian rejection of crime in their personal dealings. They would reject the use of violence, such as murder, theft, kidnapping and extortion. The uniqueness of libertarianism consists in the manner in which this principle of non-aggression is developed. To the libertarian, it matters neither who commits a crime, nor how many are involved in sanctioning its commission. As one early libertarian said:

Whatever constitutes despotism or cruelty will be continually the same. Considerations of rank and power can never alter the genuine character of human action; if the scymeter is stained with innocent blood, it matters nothing whether the fatal blow was struck by a monarch or a robber. Oppression and crime are the same in every corner of the globe; the experience of mankind with respect to their characteristics will be constant and uniform; upon those subjects, therefore, the sentence of human understanding will be ever steady and correspondent.

In other words, for the libertarian, “Crime is crime, aggression against rights is aggression, no matter how many citizens agree to the oppression. Even if 90 percent of the people decided to murder or enslave the other 10 percent, this would still be murder and slavery.” Libertarians unanimously endorse respect for individual rights and they conclude that the only possible crime among men is the violation of individual rights. The important consideration for libertarians is that individuals are always responsible for a violation of rights. Groups never act; it is always and necessarily individual members of the group who commit crimes in the name of the larger organization. “Men never lose their individuality. Though in authority, they are still men and act as men… . The acts of a government are acts of individuals - of individual men, whose accountability is in no respect changed by their official character.”

The natural law tradition affirms the libertarian attitude towards crime and aggression. The philosophy of natural law defends the rational dignity of the human individual. It provides the only basis on which the individual may rightfully criticize, in word and deed, every institution and social structure which is incompatible with the universally held moral principles of natural law. In his discourse on “The People’s Ancient and Just Liberties,” William Penn outlined the contents of the natural law, which he considered fundamental and immutable:

This exploratory article relies upon a historical-interpretive approach to understanding the relationship between legal narrative and popular consciousness in particular historical moments, focusing especially on “troubled times,” in which the legitimacy of a hegemonic worldview embodied in law comes under challenge from a newly ascendant ideology in the popular domain. To discern the nature of that relationship and its implications, I offer a three-pronged analysis, drawing on two original data sets. Initially, each data set is analyzed individually to elaborate the nature of, and changes in, (1) representations of homosexuals circulating in popular culture, and (2) constructions of homosexuals in defendants’ narratives in “homosexual advance” homicide cases between 1946 and 2003. Findings from these two analyses are thereafter combined to explore the relationship between the two constructions of homosexuals across that time period. In combination, these three analyses provide empirical evidence that, rather than mirroring changes in popular discourse about homosexuality, the changes revealed in the defense narratives actually opposed them. I use these findings to argue that, in what Swidler (1986) has called “unsettled times,” ideological pluralism is pronounced and may be discerned in the complex and sometimes counterintuitive relationships that exist within and between legal narrative and popular discourse.

On July 9, 1999, Kenneth Washington and Alexander Nicholai met at a local bar. Sometime after midnight, the pair returned together to Nicholai’s home. There, Washington claims, he passed out. He later awakened, allegedly to find Nicholai on top of him, attempting a sexual assault. Washington says he seized a knife and used it to fend off Nicholai’s advances. Nicholai’s naked and lifeless body was found by police about eight hours later.

Having confessed to the killing, Washington was brought to trial on charges of first-degree murder. In the courtroom, the defense described the victim to the jury in terms that drew heavily on classic, stereotypical scripts that cast homosexual males as violent, rapacious monsters. Describing the victim as a “Dr. Jekyll and Mr. Hyde” predator, the defense alleged that “[tjhere were two Mr. Nicholais. The first one was the outdoorsy guy… the guy with the choir, who could hold a job.” The second was a monster”buying beers for young men, hiring them to his home to take [sexual] advantage of them” (’”Homo Panic’ Defenses in CA and AK,” The Advocate, “News and Politics,” 23 May 2000. http:// www.planetout.com/news/article.html?2000/05/23/3 [accessed 3 April 2004]). Washington’s counsel asserted that, given the circumstances, the defendant had the right to stab Nicholai as many times (27) as he felt were needed to be sure he was dead.

Throughout the twentieth century, the specter of the pathological, predatory, sexually violent deviant played a significant role in shaping discourse about homosexuality. In fact, prior to the 1950s, what passed as popular knowledge about male homosexuals could be defined almost exclusively in those terms. I argue, however, that by the time the defense narrative in the case described above was being presented to jurors, prevailing cultural representations of homosexuals were no longer consistent with the images that anchored the defense’s narrative. Instead, homosexuals had come to be represented and talked about in a wide array of new roles, including rights-claimers, life-partners, adoptive or biological parents, politicians, sports heroes, arbiters of taste and fashion, average citizens, etc. In other words, the defense narrative did not fit the times.

At first glance, the defense’s depiction of Nicholai and the prevailing nature of contemporaneous popular representations of homosexuals present a discrepancy that could seem difficult to explain. Within a constitutive framework, for example, law is regarded as a factor that helps organize and interpret phenomena, including social relations; at the same time, social relations shape, give force to, and help determine the content of law. Moreover, the social and legal domains are conceived as mutually embedded and, on the whole, reciprocally constitutive (Mertz 1988; Hunt 1990; Conley & O’Barr 1990, 1998; Sarat & Kearns 1993; Coutin 1994; Hirsch & Lazarus-Black 1994; Sarat, et al. 1998). From this standpoint, law is often seen to function as an instrument of hegemony, playing a part in the constitution of a social terrain circumscribed by tacit ideological interests.

Hegemony, however, is neither static nor ever complete. Once in place, hegemony does not remain so indefinitely, nor does it preclude the existence of conflicting ideologies. Thus, as a more nuanced understanding of constitutive theory suggests-and as cases such as that involving Washington and Nicholai reveal-although law always contributes to and reflects ideology, its relationship to hegemony is necessarily contingent on whether the ideology it embraces is, at any given moment, either taken for granted or contested.

[L]awyers in criminal courts are necessities, not luxuries.”1

I. INTRODUCTION

On trial for capital murder in Harris County, Texas3 in June of 1983, Calvin Burdine was represented by Joe Cannon, an experienced criminal defense attorney.4 Burdine was accused of murdering W.T. “Dub” Wise during a robbery. Both Douglas McCreight and Burdine were accused of committing this crimes.5 Although the evidence indicated that McCreight was the primary actor during the crime, the State of Texas entered into a plea arrangement with McCreight for which McCreight served an eight year prison sentence.6 At Burdine’s trial, Cannon performed in a fashion that, apparently, was not unusual for him7-by sleeping through “substantial portions” of his client’s trial,8 including occasions where the prosecutor was questioning witnesses.9 Cannon dozed with his chin on his chest, his head bobbing up and down during the proceeding.10 He had a particular affinity for napping during the afternoons of both the guilt/innocence and punishment phases of Burdine’s trial.11 Cannon slumbered anywhere from a few seconds to about ten minutes at a time,12 and when he awoke, he often darted his head up suddenly and appeared quite startled.13

Of course, the record of Burdine’s trial cannot possibly indicate precisely when Mr. Cannon was asleep or awake or what trial happenings Cannon observed or missed because he was asleep. However, it was established that he missed “substantial portions” of the case against Calvin Burdine.14 Therefore, it is not surprising that the jury convicted Burdine of capital murder and sentenced him to death. What is surprising is that when Burdine complained of his trial counsel’s inexcusable behavior to Texas’s highest court of criminal appeals, the court summarily held that, although Burdine did prove that Cannon slept through substantial portions of Burdine’s capital murder trial, Burdine had not proven that he received ineffective assistance of counsel in violation of the Sixth Amendment.15 It was not until over sixteen years later that a divided court agreed with Burdine that the lawyering he received at his capital murder trial was constitutionally inadequate.16 Although ruling in Burdine’s favor, the court did so over strong and vociferous dissent.17

What is not unique about his case is the deplorable legal representation that he received. There are a multitude of cases that reveal legal representation of criminal defendants as something that can be described as nothing less than “poor lawyering.”19 Unfortunately, this phenomenon occurs more often than our legal system may care to admit.20

place meaningful safeguards will necessarily improve the legal representation that criminal defendants receive.

II. UNCONSCIOUS, INEBRIATED, AND OTHERWISE INCOMPETENT LAWYERING

Bellamy. In the mid- to late-1980s, after almost fifty years in the profession, attorney Sidney J. Guran retired from practicing law.39 At seventy-one years of age and under the care of a physician, Guran’s health was declining.40 His doctor diagnosed him as suffering from polyneuropathy, a neurological problem characterized, among other things, by peripheral motor weakness, unsteadiness on one’s feet, and an inability to concentrate.41 In January of 1986, Perry Bellamy’s mother retained the ailing Guran, in spite of his medical problems, to defend her son against murder charges.42 Although Guran had been retired from the practice of law for over a year, Guran agreed to the representation, a decision based in part on the fact that he had represented Perry numerous times in the past.43

between three and six months and that during that time Guran would be mentally incapacitated.46 One month later, the Committee petitioned for Guran’s indefinite suspension from the practice of law while at the same time moving for an order immediately suspending him from practicing. 47

In response to the Committee’s request of an immediate suspension, Guran attested, in sworn affidavit, that although the allegations of his physical and mental incapacity were in dispute, he should be permitted to represent Bellamy in his murder trial scheduled for the following month.48 In requesting permission to help in Bellamy’s representation, Guran stated that he would not try the case by himself but wanted to be available to assist a “competent attorney.”49 Guran promised not to take any cases other than Bellamy’s.50 The Committee granted his request.

Bellamy’s trial took place approximately one month later. In spite of his agreement with the Committee, Guran represented Bellamy without any trial assistance from additional counsel.51 The jury pronounced Bellamy guilty of murder on January 24, 1987.52 In March 1987, the Committee unanimously suspended Guran from the practice of law in order “to protect the public” because, as Guran conceded, he was incapable of practicing law.53

went unheeded until he appealed to the Second Circuit Court of Appeals. The majority of the panel agreed that Bellamy had been denied the effective assistance of counsel in violation of the United States Constitution.55 In so concluding, the panel reversed the lower court’s denial of his request for habeas corpus based on ineffective assistance of counsel, ruling that “this is one of those rare instances where denial of effective counsel must be presumed as a matter of law, without any showing of prejudice.”56

Introduction

Take two turkeys, one goose, four cabbages,
but no duck, and mix them together. After
one taste, you’ll duck soup for the rest of your
life. (2)

The past year presented a full menu of significant developments in military substantive criminal law. Some of these were full-course dinners, others only quick snacks, while a few may bring back memories of school cafeteria “mystery meat.” (3) From legislation amending the Uniform Code of Military Justice (UCMJ) in a manner not seen in almost two decades, to a dramatic pronouncement from the Supreme Court, to substantial holdings from the Court of Appeals of the Armed Forces (CAAF), the year has seen developments in widely divergent areas of substantive criminal law. The diversity of these activities, combined with the breadth of substantive criminal law itself, makes it difficult to categorize them into clear trends. (4) Instead, this article separately analyzes each of the significant developments in legislation and case law. In doing so, it points out potential issues and provides guidance to military justice practitioners.

First, the article addresses three legislative amendments to the UCMJ: the enactment of a new article punishing offenses against an unborn child; (5) the extension of the statute of limitations for child abuse crimes; (6) and the modification of the crime of drunken driving. (7) Next, the article examines a landmark case in which the Court overturned its own precedent and struck down a state statute criminalizing acts of homosexual sodomy on constitutional grounds. (8) The article also considers a Supreme Court case addressing the defeat of a conspiracy by government agents and its effect on the addition of co-conspirators. (9) Finally, the article analyzes the CAAF’s rulings from the past year in several areas of substantive criminal law, including general disorders and neglects, (10) sex crimes, (11) offenses against the administration of justice, (12) disobedience, (13) child pornography, (14) and the mistake of fact defense, (15) as well as the related matters of modification (16) and multiplicity. (17)

Legislative Changes to the UCMJ

Article 119a, UCMJ

During the past year, Congress passed two laws amending the UCMJ. Most recently, the Unborn Victims of Violence Act of 2004 (Laci and Connor’s Law) was signed into law by President Bush on 1 April 2004. (18) The Act created a new punitive UCMJ article–the first enumerated offense added by Congress in almost two decades–which will have a significant impact on certain prosecutions under the military justice system.

Article 119a creates additional liability for specified offenses that cause death or injury to an unborn child. (19) The underlying crimes covered by Article 119a are murder (Article 118); voluntary manslaughter (Article 119(a)); involuntary “misdemeanor manslaughter” (Article 119(b)(2)); (20) robbery (Article 122); maiming (Article 124); arson (Article 126); and assault (Article 128). (21) When an accused commits any of these offenses against an unborn child’s mother and thereby causes death or injury to the unborn child, he may be punished and convicted separately for both offenses. (22) The maximum punishment for violating Article 119a appears to be the same as if the resultant injury or death was inflicted on the unborn child’s mother; however, the death penalty is specifically excluded as an authorized punishment. (23)

Article 119a contains three specific exemptions for death or injury caused by a consensual abortion, by medical treatment, or by the mother. (24) Aside from these limitations, the scope of liability under Article 119a appears to be extraordinarily broad. (25) By its own terms, Article 119a requires no proof of any mental state of the accused, not even a negligent failure to know the unborn child’s mother is pregnant. (26) Apparently, the mens rea for the underlying offense is the only mental state required for liability. (27) Furthermore, the class of potential victims–unborn children–is broadly defined. (28)

Finally, the text of Article 119a is ambiguous in one respect. Although the article requires no intent to kill or injure, it specifically addresses an accused who intentionally kills or attempts to kill an unborn child. (29) Unfortunately, Article 119a does not clearly state how such an accused should be charged. (30) Absent future legislation clarifying this issue, it will likely remain unresolved until the CAAF conclusively decides what Congress intended. (31)

Article 43, UCMJ

In November 2003, Congress passed the National Defense Authorization Act for Fiscal Year 2004, which amended two existing UCMJ articles. (32) In Article 43, the Act extended the statute of limitations period for “child abuse offenses,” defined as physical or sexual abuse of a person under age sixteen, in violation of any of several specified articles of the UCMJ. (33) For these offenses, the limitations period was previously five years; it now runs until the child victim’s twenty-fifth birthday. (34) As amended, the article raises some important issues.

Busted, tried and convicted! That is the verdict police expect when forensic technicians match a fingerprint found at the scene of the crime to a suspect. Long considered an infallible means of personal identification, latent fingerprints lifted from a murder weapon used to mean one word to detectives: Gotcha!

But, perhaps, not anymore.

U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania recently rocked forensic-evidence technicians with a landmark decision that could change forever how fingerprints are viewed in the courtroom. In an ongoing drug-related murder trial, U.S. v. Plaza, Pollak ruled in January that fingerprint experts no longer may tell juries that two prints are a match. His ruling is considered a major victory for defense attorneys, especially coming from a judge with the stature of Pollak — a former dean of both the Yale and University of Pennsylvania law schools — who routinely is invited to sit on the U.S. Court of Appeals.

“The ruling is great,” says Douglas J. Wood, a Maryland defense attorney who recently won an acquittal for a 26-year-old Largo, Md., man charged with carjacking and attempted murder of a police officer by challenging the credibility of fingerprint evidence. “Prosecutors used to put a fingerprint examiner up on the stand and our job was to get him off as quickly as possible. When they said they had a match you knew you were [screwed]. Now I will never stipulate to fingerprint evidence again.”

Wood called no defense witnesses to persuade the jury that Derrell Lamont Gilchrist was innocent. Instead, the defense attorney dumped much of the same technical attacks on the methodology of fingerprinting as presented to Pollak on the lap of a Maryland examiner — who seemed dumbfounded that a growing number of academics are charging that fingerprinting has little to do with science. “She was so unfamiliar with the literature that in one way she looked incompetent,” Wood says. “She didn’t come across well. That was critical to winning the case.”

Since 1999 most of that literature has been reviewed by jurists in nearly two dozen lower-court cases and three appellate-court decisions. All those courts ruled in favor of fingerprint evidence, noting it has been widely accepted and deemed reliable since 1911. Pollak became the first influential jurist to issue a judicial notice that the so-called “science of fingerprint evidence” is insufficient to determine what constitutes a match.

Pollak noted that while fingerprints are indeed “unique” and “permanent,” they fail the “Daubert test,” the standard used to judge whether evidence was collected scientifically. The Daubert test grew out of the landmark 1993 U.S. Supreme Court case Daubert v. Merrell Dow, which involved allegations that the morning-sickness drug Bendectin causes birth defects. To pass the Daubert test, fingerprinting must have testability, error rates, peer review and standards. It doesn’t

In his written opinion, Pollak stated that fingerprint science has not been tested in a scientific sense. “It makes sense to rely on scientific testing, rather than `adversarial’ courtroom testing, because to rely on the latter would be to vitiate the gatekeeping role of federal trial judges. If adversarial testing were the benchmark — that is, if the validity of a technique were submitted to the jury in each instance — then the preliminary role of the judge in determining the scientific validity of a technique would never come into play,” he wrote. “Thus, even 100 years of adversarial testing in court cannot substitute for scientific testing when the proposed expert testimony is presented as scientific in nature.”

Pollak said he was impressed with David Stoney, the director of the McCrone Research Institute in Chicago, who testified that a fingerprint examiner does not make “a scientific examination. It is a subjective determination standard. It is a subjective determination without objective standards to it.”

Wood agrees. “I always thought fingerprints were fallible. The science and the comparison is a very subjective process. If you have an examiner who is not qualified, they are like clerks or technicians at best. They are not scientists. They are not Ph.D.s. Sometimes they have only a high-school diploma.”

Meanwhile, prosecutors recently asked Pollak to reconsider his ruling. They note examiners employ a method known as ridgeology or ACE-V (an acronym for “analysis, comparison, evaluation and verification”), and the millions of print comparisons serve as a body of testing, as do numerous scientific articles written about the process. While the ACE-V process sounds impressive, critics charge it still is too subjective to be classified as science and note examiners still claim it has a “zero-error” rate, which real scientists never do.

Some jurisdictions used to require examiners to find a minimum number of “Galton points” — matching characteristics on the fingerprint — before they could declare a match. But those similarities also are subjective and are inconsistent from state to state and country to country, says Simon Cole, author of Suspect Identities: A History of Fingerprinting and Criminal Identification.

Senator John Warner (R-VA), chairman of the Senate Armed Services Committee, and Senator Carl Levin, ranking member, announced today that the Senate and House conferees reached agreement on the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. The bill authorizes funding for the Department of Defense and the national security programs of the Department of Energy.

“We remain a nation at war against terrorism, and we will win because of the extraordinary Americans who volunteer to serve the cause of peace and freedom. All Americans are in their debt, and they and their families deserve our unwavering support,” said Warner. “I can think of no better way to honor the service and sacrifice of our servicemen and women and their families than to provide them with a higher level of pay and benefits and to give them the equipment they need to carry out their critical missions on behalf of our nation. I think it is particularly fitting that this bill is named after President Reagan,” Warner added.

“This bill improves the quality of life for our men and women in uniform, provides the equipment they need to perform their important and dangerous missions, and makes the investments we need to meet the challenges of the 21st century,” said Levin. “I am especially pleased that this bill increases the active duty end strength of the Army and Marine Corps, and increases the benefits for our active duty, National Guard, and Reserve forces, and for their families,” he added.

CONFERENCE REPORT HIGHLIGHTS

This conference report underscores the Committee’s strong support for the men and women of the armed forces who are fighting so bravely in the global war on terrorism. The conference report includes a 3.5 percent across-the-board increase in pay for all uniformed service personnel. It creates a new healthcare benefit for reservists by authorizing TRICARE coverage for Reserve members who served on extended active duty. It authorizes a permanent increase in special pay for duty subject to hostile fire or imminent danger and for family separation allowances, and increases special pays for members of the National Guard and Reserve for enlistment and reenlistment.

The conferees agreed to authorize a multiyear procurement for 100 new aerial refueling aircraft, while prohibiting the lease of KC-767A tanker aircraft by the Air Force. They also agreed to require that any contract for the maintenance and logistics support for new aerial refueling aircraft be competitively awarded.

The conferees reached an agreement that will maintain the authority for the Department of Defense to conduct a round of base realignment and closure in 2005. Warner stated, “This top Administration priority is absolutely essential and necessary for 2005, to allow the Department to evaluate its infrastructure and to make smart decisions to support a well-postured 21st century military. We must complete this crucial process over the next year in order to reduce aging [and] excess infrastructure, provide resources for the military where they need it the most, and provide investment and development opportunities for the local communities that so strongly support our military forces.”

In addition, the conferees:

* Authorized a 3.5 percent across-the-board pay raise for all uniformed service personnel

* Authorized increases in active-duty end strength of 20,000 for the Army and 3,000 for the Marine Corps

* Authorized an increase in the Survivor Benefit Plan annuity that will be phased in over 3.5 years and, by 2008, eliminate the existing two tier system

* Approved permanent eligibility for up to 90 days of TRICARE coverage for Reserve members and their families prior to mobilization, and 180 days of transitional health benefits for Reserves, active duty members, and their families when the member separates from active duty service

* Authorized a new program of educational assistance to members of the Selected Reserve, providing varying amounts of aid depending on the length of time mobilized

* Authorized immediate concurrent receipt, without phase-in, of military retired pay and veterans’ disability compensation for retirees who are rated at 100 percent disabled

* Included a provision that would expand criminal jurisdiction over federal employees and contractor personnel supporting the DoD mission overseas

* Removed the existing funding limitations on the military housing privatization authorities, which will allow the military services to continue to partner with the private sector to provide the highest quality housing for military members and their families in the shortest amount of time

* Authorized $10 billion for ballistic missile defense, and provided additional funding for the ground-based midcourse missile defense segment.

* Established new benefits under the Energy Employee Occupational Illness Compensation Program Act to compensate energy employees for illnesses resulting from exposure to toxic substances at a Department of Energy facility; the provision would direct the Department of Labor to administer this new benefit program, which is intended to provide a simple, fair, and uniform workers compensation system

INTRODUCTION

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) create an obligation for lawyers to disclose to the tribunal when perjured testimony has been or may be introduced.1 The problems of identifying such perjury and the obligations that arise from Model Rule 3.3 are varied and complex.2 Client perjury puts the criminal defense attorney in an unenviable position. It creates a tension between the duty of zealous advocacy and the duty of candor toward the court.3

Dean Monroe Freedman famously presents this problem in terms of the “perjury trilemma.”4 Dean Freedman notes that lawyers face three obligations in performance. The first two stem from the important, almost sacred, attorneyclient relationship. First, there is the duty to investigate a client’s case. As Dean Freedman argues, “in order to give clients the effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts.”5 Second, there is the obligation of zealous client advocacy.6 These are potentially at odds with the third duty, the obligation of lawyers to the court. Lawyers are officers of the court and hold certain responsibilities as such.7 They have specific requirements imposed upon them in such a capacity that cannot be forsaken.8

disclosure of potential client perjury threatens the relationship between an individual accused of a crime and their one and only representative in the criminal justice system. “[T]o convert the defendant’s only champion into yet another member of the state’s legions seems an unnecessary and offensive step.”9 Dean Freedman argues that only two of these three obligations can be met at any given time.10 So which of the three should go? In our adversarial system, the relationship between a criminal defense attorney and her client is special. The first and second obligations are essential for zealous advocacy. 11 The third, however, is essential for lawyers as participants in the judicial system as a whole.12 This creates a complicated and difficult situation for a criminal defendant attorney.

This Note will discuss some of the varied commentary on Model Rule 3.3 in light of the perjury trilemma. It presents the key issues at stake for criminal defense attorneys facing prospective client perjury. Part I will discuss the constitutional questions surrounding the issue of prospective client perjury faced by the criminal defense attorney. The question of whether an attorney has violated the tenets of the Model Rules turns, generally, on two issues: what is “knowingly” and what is “material.” Part II of this Note will discuss the knowledge requirement of Model Rule 3.3, arguing that the ABA and the courts should adopt the most stringent standard for knowledge: that a criminal defense attorney must have proof beyond a reasonable doubt before going to the drastic step of disclosure to the tribunal. This will preserve the constitutional rights of criminal defendants and maintain the sanctity of the attorney-client relationship. Part III will discuss the materiality requirement of Model Rule 3.3, arguing that materiality of a disputed fact is an important consideration in a lawyer’s individual determination of her obligations under Model Rule 3.3. Finally, Part IV will discuss what options are available to attorneys who may find themselves facing potential client perjury. The Model Rules should list the available possibilities, relying on the lawyer’s judgment to determine what is best for the client.

I. CONSTITUTIONAL DUTIES OF CRIMINAL DEFENSE ATTORNEYS

The interaction of a defendant’s constitutional rights with the responsibilities of his lawyer to avoid presenting false evidence or making material misstatements of fact13 forms the basis of this Note; namely, what does a lawyer do when she believes that her client may commit perjury at his criminal trial? As discussed below, this question has both a constitutional and an ethical component. The constitutional question is whether the actions an attorney takes will deprive her client of either effective assistance of counsel or due process of law.14 State laws regarding the professional conduct of attorneys form the ethical component of the criminal defendant perjury problem.

The issue itself has yielded a multiplicity of approaches and decisions in the last quarter-century, but none has provided a definitive answer on the topic.20 The thorniness of the question should not, however, prevent its careful study and a deliberative approach to the topic. When do the actions of an attorney who acts upon the potential perjury of her criminal defendant client violate the client’s federal constitutional rights?

right to counsel27 have become enforceable against the states. In addition, the Supreme Court has recognized certain other rights as corollary to and emanating from those granted by the Fifth and Sixth Amendment, including the right of a criminal defendant to testify in his own defense.28

In Nix v. Whiteside, the Court addressed the question of whether a lawyer’s refusal to allow his client to perjure himself was ineffective assistance of counsel.29 In Nix, the defendant was charged with murder and claimed self-defense.30 The defendant, in his first interview with counsel, said that he did not see a gun in the decedent’s hand but believed that there was one.31 The defendant repeated this story until just before trial, when he first claimed that he in fact saw something “metallic.”32 After his counsel inquired about this change, he responded that “[i]f I don’t say I saw a gun, I’m dead.”33 Counsel then told the defendant that if the defendant testified about seeing something metallic, counsel would inform the court of the perjury and testify against the defendant as a rebuttal witness.34 The defendant then testified that he did not see a gun in the decedent’s hand, and he was convicted.35 He challenged his conviction on the grounds that his lawyer’s threats constituted ineffective assistance of counsel in that they deprived him of a fair trial.36 The Eighth Circuit Court of Appeals vacated the defendant’s conviction on the grounds that the attorney’s “threatened violation of client confidences breached the standards of effective representation.”37 The Supreme Court reversed, holding, among extremely broad dicta about the values of professional responsibilities and the justice system, that the defendant could not claim ineffective assistance because he had “no ‘right’ to insist on counsel’s assistance or silence” in the commission of perjury.38

INTRODUCTION

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) create an obligation for lawyers to disclose to the tribunal when perjured testimony has been or may be introduced.1 The problems of identifying such perjury and the obligations that arise from Model Rule 3.3 are varied and complex.2 Client perjury puts the criminal defense attorney in an unenviable position. It creates a tension between the duty of zealous advocacy and the duty of candor toward the court.3

Dean Monroe Freedman famously presents this problem in terms of the “perjury trilemma.”4 Dean Freedman notes that lawyers face three obligations in performance. The first two stem from the important, almost sacred, attorneyclient relationship. First, there is the duty to investigate a client’s case. As Dean Freedman argues, “in order to give clients the effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts.”5 Second, there is the obligation of zealous client advocacy.6 These are potentially at odds with the third duty, the obligation of lawyers to the court. Lawyers are officers of the court and hold certain responsibilities as such.7 They have specific requirements imposed upon them in such a capacity that cannot be forsaken.8

disclosure of potential client perjury threatens the relationship between an individual accused of a crime and their one and only representative in the criminal justice system. “[T]o convert the defendant’s only champion into yet another member of the state’s legions seems an unnecessary and offensive step.”9 Dean Freedman argues that only two of these three obligations can be met at any given time.10 So which of the three should go? In our adversarial system, the relationship between a criminal defense attorney and her client is special. The first and second obligations are essential for zealous advocacy. 11 The third, however, is essential for lawyers as participants in the judicial system as a whole.12 This creates a complicated and difficult situation for a criminal defendant attorney.

This Note will discuss some of the varied commentary on Model Rule 3.3 in light of the perjury trilemma. It presents the key issues at stake for criminal defense attorneys facing prospective client perjury. Part I will discuss the constitutional questions surrounding the issue of prospective client perjury faced by the criminal defense attorney. The question of whether an attorney has violated the tenets of the Model Rules turns, generally, on two issues: what is “knowingly” and what is “material.” Part II of this Note will discuss the knowledge requirement of Model Rule 3.3, arguing that the ABA and the courts should adopt the most stringent standard for knowledge: that a criminal defense attorney must have proof beyond a reasonable doubt before going to the drastic step of disclosure to the tribunal. This will preserve the constitutional rights of criminal defendants and maintain the sanctity of the attorney-client relationship. Part III will discuss the materiality requirement of Model Rule 3.3, arguing that materiality of a disputed fact is an important consideration in a lawyer’s individual determination of her obligations under Model Rule 3.3. Finally, Part IV will discuss what options are available to attorneys who may find themselves facing potential client perjury. The Model Rules should list the available possibilities, relying on the lawyer’s judgment to determine what is best for the client.

I. CONSTITUTIONAL DUTIES OF CRIMINAL DEFENSE ATTORNEYS

The interaction of a defendant’s constitutional rights with the responsibilities of his lawyer to avoid presenting false evidence or making material misstatements of fact13 forms the basis of this Note; namely, what does a lawyer do when she believes that her client may commit perjury at his criminal trial? As discussed below, this question has both a constitutional and an ethical component. The constitutional question is whether the actions an attorney takes will deprive her client of either effective assistance of counsel or due process of law.14 State laws regarding the professional conduct of attorneys form the ethical component of the criminal defendant perjury problem.

The issue itself has yielded a multiplicity of approaches and decisions in the last quarter-century, but none has provided a definitive answer on the topic.20 The thorniness of the question should not, however, prevent its careful study and a deliberative approach to the topic. When do the actions of an attorney who acts upon the potential perjury of her criminal defendant client violate the client’s federal constitutional rights?

right to counsel27 have become enforceable against the states. In addition, the Supreme Court has recognized certain other rights as corollary to and emanating from those granted by the Fifth and Sixth Amendment, including the right of a criminal defendant to testify in his own defense.28

In Nix v. Whiteside, the Court addressed the question of whether a lawyer’s refusal to allow his client to perjure himself was ineffective assistance of counsel.29 In Nix, the defendant was charged with murder and claimed self-defense.30 The defendant, in his first interview with counsel, said that he did not see a gun in the decedent’s hand but believed that there was one.31 The defendant repeated this story until just before trial, when he first claimed that he in fact saw something “metallic.”32 After his counsel inquired about this change, he responded that “[i]f I don’t say I saw a gun, I’m dead.”33 Counsel then told the defendant that if the defendant testified about seeing something metallic, counsel would inform the court of the perjury and testify against the defendant as a rebuttal witness.34 The defendant then testified that he did not see a gun in the decedent’s hand, and he was convicted.35 He challenged his conviction on the grounds that his lawyer’s threats constituted ineffective assistance of counsel in that they deprived him of a fair trial.36 The Eighth Circuit Court of Appeals vacated the defendant’s conviction on the grounds that the attorney’s “threatened violation of client confidences breached the standards of effective representation.”37 The Supreme Court reversed, holding, among extremely broad dicta about the values of professional responsibilities and the justice system, that the defendant could not claim ineffective assistance because he had “no ‘right’ to insist on counsel’s assistance or silence” in the commission of perjury.38

Nineteen-year-old Eagle Scout Gary Hirte admitted he murdered Glenn Kopitske, a 37-year-old gay Wisconsin man. But Hirte’s attorney told a jury in February that his client should not be held responsible for his actions: He did it only because he was crazy with rage and shame after the two had sex in Kopitske’s rural Winnebago County home in the summer of 2003.

Of course, the jury also heard how Hirte had returned to Kopitske’s home hours after the sexual encounter with a shotgun and a hunting knife, both of which he used in the killing. They heard how Hirte had bragged to friends about his deed, showing at least one of them the bloody knife and the victim’s car keys. They heard how he’d told a pal that he murdered Kopitske just to see what it was like to kill someone.

The jury rejected Hirte’s claim of temporary insanity and recommended he be sentenced to life in prison.

The “gay panic” defense fails more often than it succeeds, legal experts say, but it’s a defense strategy that continues to emerge in cases of violence against gay men and transgender women in jurisdictions across the nation. Now law-enforcement officials are banding together to fight back. In February more than 100 prosecutors, lawyers, and police officers met in Atlanta at a symposium titled “Defeating the Gay-Panic Defense,” billed as the nation’s first such gathering.

The strategy session was the brainchild of Atlanta district attorney Paul Howard. Two years ago Howard had watched as a Georgia jury acquitted a man who had confessed to beating to death a gay lawyer who the defendant claimed had performed oral sex on him at gunpoint. The victim had worked for Howard, who says the experience of seeing his employee’s killer walk out of the courtroom a free man was “galvanizing. There were a lot of people in my office who were upset by this, and I told them, ‘Let’s do something constructive.’”

Long a mainstay of lawyers defending the killers of gay men, the gay panic defense hit the national news in 1999. “What really brought this to the forefront was the Matthew Shepard case,” Howard says. During the trial of Aaron McKinney, who admitted to fatally beating the 21-year-old gay college student near Laramie, Wyo., in October 1998, defense attorneys told the judge they would argue that McKinney killed Shepard in a blind fury after a sexual advance by Shepard had brought out demons from the killer’s troubled sexual past. But district judge Barton Voigt “called it a gay panic defense and said it couldn’t be brought in,” Howard recounts. The judge likened the defense strategy to temporary insanity or a diminished-capacity defense, both of which are prohibited by Wyoming law.

Still, McKinney’s lawyer was allowed to raise the issue during his opening statement, and the tactic may have helped win McKinney a conviction for second-degree murder instead of first-degree premeditated murder. (McKinney was also convicted of first-degree felony murder, which unlike first-degree premeditated murder does not require proof of intent to kill, just to commit a related felony, in this case robbery and kidnapping.)

Since that trial, legal experts say, judges across the nation have become more reluctant to allow the gay panic defense, often ruling that testimony about the victim’s sexual orientation is inadmissible. Judges are particularly skeptical when attorneys complain during an appeal that the gay panic defense should have been allowed at the original trial, says New York Law School professor Arthur Leonard, who has tracked gay issues in the law for more than 20 years. “Appellate judges tend to be strongly averse to upsetting a conviction based on [gay panic],” he says. Judges typically rule “that murder is a disproportionate response to an unwelcome sexual solicitation or invitation.”

But what seems a disproportionate response to some may still strike juries as partial justification for the brutal murder of gay men. In Kentucky, 23-year-old Josh Cottrell admitted beating to death Guinn “Richie” Phillips, a 36-year-old gay Rineyville man, and then stuffing his body into a suitcase. Taking the stand during his trial, Cottrell argued that he killed Phillips in self-defense after the older man attempted to force him to perform oral sex in a motel room. Beating Phillips unconscious, he claimed, was the only way to avoid unwanted gay sex. What else could he do?

Although they recommended a sentence of 30 years, the jury declined to find Cottrell guilty of murder. They convicted him instead of second-degree manslaughter in a case that could have brought the death penalty. On March 1 a judge sentenced Cottrell, a previously convicted felon, to 20 years in prison. He could be eligible for parole in about two years.

Why did the jury not return a murder conviction? “I think they were looking at my brother being a homosexual when they made their decision to pick the lesser charge,” Phillips’s brother, Greg, told a local newspaper.