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THE ARMY LAWYER ARTICLES Restoring Balance to the Scales: Higher Panel Quorums and Voting Requirement in Light of Article 60 Restrictions Major Jeremy D. Broussard Advising Military Clients on Lump Sum Income Major Cesar B. Casal Knowing is Half the Battle: The Case for Investigative Subpoena Power in the Military Justice System Major Alexander G. Douvas, USMC Where the Interests of Justice and Humanitarianism Collide: The International Committee of the Red Cross’s “Right” to Non-Disclosure and Evidentiary Privilege Major Brett A. Warcholak, USMC TJAGLCS FEATURES Lore of the Corps An Army Lawyer Tried and Convicted by Court-Martial: United States v. Joseph I. McMullen BOOK REVIEWS The Wright Brothers Reviewed by Captain Nicholas C. Frommelt, USAF Pay Any Price: Greed, Power, and Endless War Reviewed by Lieutenant Commander Aaron M. Riggio, USN Judge Advocate General’s Corps Bulletin 27-50-513 February 2016 Editor, Captain Cory T. Scarpella Contributing Editor, Major Laura A. 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The style guidance in Lore of the Corps An Army Lawyer Tried and Convicted by Court-Martial: United States v. Joseph I. McMullen.................................................................................................. 1 Articles Restoring Balance to the Scales: Higher Panel Quorums and Voting Requirement in Light of Article 60 Restrictions Major Jeremy D. Broussard ............................................................................................................. 5 Advising Military Clients on Lump Sum Income Major Cesar B. Casal .....................................................................................................................16 Knowing is Half the Battle: The Case for Investigative Subpoena Power in the Military Justice System Major Alexander G. Douvas, USMC ...............................................................................................27 Where the Interests of Justice and Humanitarianism Collide: The International Committee of the Red Cross’s “Right” to Non-Disclosure and Evidentiary Privilege Major Brett A. Warcholak, USMC ...................................................................................................39 TJAGLCS Features Book Reviews The Wright Brothers Reviewed by Captain Nicholas C. Frommelt, USAF ........................................................................51 Pay Any Price: Greed, Power, and Endless War Reviewed by Lieutenant Commander Aaron M. Riggio, USN ..........................................................55 FEBRUARY 2016 • THE ARMY LAWYER • JAG CORPS BULLETIN 27-50-513 Lore of the Corps An Army Lawyer Tried and Convicted by Court-Martial: United States v. Joseph I. McMullen By Fred L. Borch Regimental Historian & Archivist While there have been a handful of courts-martial in In this important legal assignment, McMullen had much which an Army lawyer was the accused, including one contact with businessmen and corporations doing business involving a former Judge Advocate General,1 the high-profile with the Army. By all accounts, he was a superb attorney trial of Colonel Joseph I. McMullen in February 1936 has “who discharged his duties in an excellent manner and did long been forgotten. But the case is worth remembering for nothing . to impair . the rights of the War Department in two reasons: First, McMullen was well-known as one of the patent matters.”9 But, perhaps believing that his good work prosecutors in the court-martial of Colonel William “Billy” entitled him to more than his military pay and allowances, Mitchell in the 1920s, and so the story of his trial was carried McMullen engaged in “gravely unethical conduct.”10 in the newspaper of the day. 2 Second, the misconduct for which McMullen was convicted was a classic violation of professional ethics: engaging in the private practice of law and accepting money and other gratuities from civilian corporations that were doing business with the government. What follows is the story of Joseph I. McMullen’s place in military legal history. Joseph Irving McMullen began his military career in April 1896, when he enlisted in the 6th Cavalry at the age of 22.3 Five year later, he obtained a commission as a Second Lieutenant (2LT).4 McMullen then remained on active duty until 1906, when he “was retired on account of physical disability in line of duty.”5 Ten years later, 2LT McMullen was recalled to active duty, and after America’s entry into World War I, he was quickly promoted to first lieutenant, captain, then major.6 In August 1921, now Lieutenant Colonel McMullen transferred Judge Advocate Colonel Joseph I. McMullen (center) stands with to the Judge Advocate General’s Department; he apparently his son, Bruce McMullen (left), and defense counsel, William had been admitted to the bar in Idaho and California sometime Leahy (right), after his conviction by general court-martial for dishonorable conduct on February 20, 1936. prior to World War I and so was well-qualified to serve as an Army lawyer.7 Additionally, McMullen seems to have been an expert in patent law, which would explain why he was the A 1935 investigation conducted by the Army Inspector Chief of the Patents Section, Judge Advocate General’s General (IG) revealed that in 1932, newly-promoted Colonel 8 Office, from 1921 until 1935. (COL) McMullen had received $3,000 from the Cuban- 1 In 1884, Brigadier General David D. Swaim, who had been serving as 3 McMullen v. United States, 100 Ct. Cl. 323, 324 (1943). Judge Advocate General since 1881, was tried for “improprieties” arising out of “his conduct of a business transaction,” including fraud and conduct 4 Id. unbecoming an officer. U.S. ARMY JUDGE ADVOCATE GENERAL’S CORPS, THE ARMY LAWYER 79-82 (1975). After an unprecedented fifty-two days 5 Id. of trial time, Swaim was found guilty and sentenced to be suspended from rank, duty, and pay for three years. Id. Unhappy with this result, however, 6 Id. President Chester A. Arthur returned the case to the court for “revision,” which was permitted under the Articles of War at that time. Id. As a result, 7 Id. at 325. See also WALLER, supra note 2, at 51. the members “adjusted” Swaim’s sentence to suspension from rank for twelve years and to forfeiture of one half of his monthly pay for every 8 JUDGE ADVOCATE GENERAL’S DEPARTMENT, BOARD OF REVIEW