DATE: Tuesday, May 6, 1997                  TAG: 9705060244

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY JACK DORSEY, STAFF WRITER 

                                            LENGTH:  153 lines

NAVY DECERTIFIES LAWYER WHO STOOD FIRM FOR CLIENT OFFICER DEFENDED SAILOR IN A DUI CASE; THE NAVY SAID IT FIRED THE LAWYER FOR A PAST ETHICAL VIOLATION.

Navy lawyer James Walsh may have won a controversial drunken-driving case in Sigonella, Sicily, last month.

That's the way it'll go down in the books, anyway: Walsh attacking the prosecution's case and, over time, convincing the Navy that it should not boot his client, Petty Officer 1st Class Thomas Bennett.

But the victory, Walsh says, came at a price: The Navy abruptly fired the 30-year-old lieutenant April 22, giving him less than 24 hours to leave Sigonella, where he was defending Bennett in an administrative separation hearing.

His Navy bosses told him that he was being ``decertified'' as a Navy lawyer - akin to disbarment in civilian legal circles - for a past ethical violation that Walsh describes as ancient history.

But the lawyer sees the action as payback for his aggressive defense of Bennett, from a Navy that calls upon its attorneys to attack, at times, the very service that strokes their paychecks and shepherd their careers.

``I felt like someone had kicked me in the stomach,'' Walsh said, after a military flight into Norfolk late last month.

``I remember when I first started practicing law for the Navy that my C.O. told me there is no tension between being a defense counsel and a naval officer - that the Navy doesn't hold anything against you in your pursuit of defending military members.

``That is the farthest thing from the truth,'' he said, ``primarily because of command influence.''

Navy public affairs officers at Sigonella and in Washington say they cannot respond to questions about Bennett's status or Walsh's troubles. Both matters are protected by privacy laws, they say.

Walsh, however, said he had not finished his closing arguments when he was handed the plane tickets and told to get off the island.

His client, whom he'd been detailed to defend last summer, had been charged with driving under the influence of alcohol after a one-car accident outside the Sigonella Naval Air Station. A sobriety test found that Bennett's blood-alcohol content was nearly twice the level the military considers legally drunk.

Bennett maintained that his wife, not he, was driving the car. When the case got to court-martial, the charges against him were withdrawn on technicalities - his blood had been taken illegally, and he had not been briefed on his rights during his arrest.

The Navy opted to convene an administrative separation board proceeding against Bennett that could have cost him his career, just two years shy of retirement.

Walsh made waves in defending the sailor.

``To be honest, I don't think they like the way I represent people,'' he said. ``I was a little more brazen in my approach to cases. I don't think anybody would have taken Bennett's case as far as it went.''

He did it, he said, because he saw shoddy police work in the case, with base security officers giving conflicting statements, illegally taking blood samples, destroying a videotape they made at the hospital where Bennett and his wife were taken for treatment. Months after the accident, they produced incriminating details of Bennett's behavior and statements that they had not included in their initial reports.

With the case under way, Bennett was counseled by his superiors for speaking to his lawyer. Walsh received complaints from base security officials for questioning their police officers.

And somewhere along the way, Walsh believes, he angered senior Navy officers who reached 18 months back in his career to find a reason to get rid of him.

His allegation takes aim at a system that has long sought to insulate its lawyers from such influence.

In myriad cases in which the Navy has suffered black eyes - even the celebrated Tailhook trials - Navy defense lawyers have had no trouble leaning on the top brass.

That's because the service's lawyers are in a ``stovepipe'' chain of command - the Navy Legal Services Office - in which they report to other lawyers, rather than a base commander.

Theoretically, a lawyer should be able to make a line officer squirm in the course of a trial, without fear that the zeal with which he represents his case will come back to haunt him.

``It (ticks) them off,'' said one lawyer, ``but we attack the system and the bosses all the time.''

A lawyer who suggests a boss has illegal motives ``better be able to prove it,'' said another Navy lawyer, who asked not to be identified.

But making such an assertion without basis ``wouldn't get you decertified,'' the lawyer said. ``It would get you yanked up by the short hairs and a good butt-chewing, and you might be moved from defense (cases) to claims. But we wouldn't decertify you for that.''

Indeed, it is rare that military lawyers are disciplined and even more rare to be stripped of their ability to practice law.

``It is extremely uncommon,'' said Eugene Fidell, president of the National Institute of Military Justice in Washington.

A former Navy lawyer in Norfolk said the few cases he was aware of in which military lawyers were disciplined in such a fashion usually involved individuals judged to be incompetent or convicted of felonies at court-martial.

``This would be extremely unusual,'' he said. ``I can't think of a lawyer who has been decertified.''

Walsh says the explanation he was given for his decertification centered on a lawyer-client relationship he formed in 1995 with a Navy man who faced serious criminal charges and who came to him for legal advice.

Service regulations preclude lawyers from forming such a relationship without being detailed to represent the client. And, to complicate matters, Walsh also was close to the victim in the case, though he says he didn't realize the two were connected.

``I communicated with someone who was represented by counsel. That is a no-no,'' Walsh said. ``I had no idea it was a criminal matter. . . .

``In the big scheme of things, is that a problem? No. . . The judge did not think it was going to be a problem and basically said, `Dumb mistake. Don't do it again.' ''

When that case went to trial, the attorney representing the man filed a motion to dismiss the case, saying Walsh violated his client's right to due process. The judge ruled there was no prejudice to the accused, Walsh said. The trial went forward.

Walsh said he heard nothing about the matter afterward, though he knew it was being reviewed up the chain of command to the Navy's top Judge Advocate General, Rear Adm. Harold E. Grant.

He met with Grant over the matter last year and thought it was closed.

``If they thought I was incompetent,'' he said, ``why did they allow me to represent all these people over the past 18 months?''

The answer, Walsh insists, is that the 18-month-old case isn't the real reason for his dismissal.

The real reason, he says, began to unfold when Bennett refused to face the DUI charges at a captain's mast, a form of nonjudicial punishment, instead insisting that he be court-martialed.

``When you go to captain's mast, they expect you to roll over and say, `I'm guilty, have mercy on me,' '' Walsh said.

``When you refuse it, that creates paperwork. Bennett was treated like a pariah from day one. He asserted his rights, something Congress gave him. But that just pissed people off. They wanted the case to go away.''

Although repeatedly delayed because of a variety of reasons, including an inquiry by Sen. Rick Santorum, R-Pa., a member of the Armed Services Committee, Bennett's hearing was held late last month.

The officers and sailors who heard the evidence decided that Bennett was not driving the car at the time of the accident but ruled that he tried to move the car afterward - enough to conclude he was guilty of ``serious misconduct.''

It recommended he be discharged from the Navy under ``other than honorable conditions.'' However, because of his stellar Navy record - he wears the four gold hashmarks, or service stripes, of a sailor who holds the Good Conduct Medal - it also recommended the punishment be suspended for 12 months.

It's up to the base commander, Capt. W.J. Tyson III, to accept the board's recommendation. Tyson can make his own recommendation and still have Bennett discharged.

But assuming that he stays out of trouble, many close to the case believe Bennett will be allowed to complete his 20-year career.

Walsh, a civilian again for the first time in four years, faces the difficult task of winning a job practicing civilian law with a black mark against him from the Navy.

There is no appeal to his case. KEYWORDS: U.S. NAVY LAWYER DECERTIFICATION

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