The Arkansas Lawyer Fall 2018

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Vol. 53, No. 4, Fall 2018 online at www.arkbar.com

Tribute to Members Who Have Served in the U.S. Armed Forces

A $217,700,000 JURY VERDICT FOR

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farmers. That was the nation’s tenth-highest verdict of 2017 according to the National Law Journal’s (NLJ)

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know that, in the end, our work is not about numbers.

top-ten verdict led to the $1.51 billion global settlement

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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Haley M. Heath Luke K. Burton Dr. Frankie Martin Griffin Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Suzanne Clark Board of Governors Chair J. Cliff McKinney II President-Elect Brian M. Rosenthal Immediate Past President Anthony A. “Tony” Hilliard President-Elect Designee Paul W. Keith Secretary Glen Hoggard Treasurer Joseph F. Kolb Parliamentarian Aaron L. Squyres Young Lawyers Section Chair Sarah C. Jewell BOARD OF GOVERNORS James Paul Beachboard Kandice A. Bell Margaret Hobbs Benson Earl Buddy Chadick Sterling Taylor Chaney Brian M. Clary Grant M. Cox Carol C. Dalby Bob Estes Robert (Skip) L. Henry III Joshua D. McFadden James E. McMenis Brandon K. Moffitt Brant Perkins Colby T. Roe Amy Lee Stewart Albert J. Thomas III Robert M. Veach Andrea Grimes Woods H. Wayne Young, Jr. LIAISON MEMBERS Judge Charles E. Clawson Patti Julian Judge Jeff C. Harper Sarah C. Jewell Jason B. Hendren Harry Truman Moore Lori D. Howard Richard L. Ramsay Karen K. Hutchins The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202.

Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2018, Arkansas Bar Association.

All rights reserved.

The Arkansas

Lawyer Vol. 53, No. 4

features

12 Remembering Those Who Served 14 Members Who Have Served in the U.S. Armed Forces 20 Events at the Pentagon on September 11, 2001

By David Dero Phillips 24 Military Justice in the Arkansas National Guard

By Steven S. Zega 30 How Effective is Arkansas’ Program that Conditionally Releases Criminal Defendants Judged Not Guilty by Reason of Mental Disease or Defect?

By Samuel J. House, Tiffany A. Howell, Jessica Howdeshell, Carrie Jones and Rebecca B. Spohn 36 Beware of Not Guilty by Reason of Mental Disease or Defect

By Rusty Byrne 38 Patent Litigation: Could Arkansas be Home to More Suits after TC Heartland?

By Frederick H. Davis and Zachary R. Hill 42 Supreme Court Clarifies Standard for Disqualification of Attorneys

By Adrienne M. Griffis 46 Revisiting the Prejudice Standard for Ineffective Assistance of Counsel Claim

By Carissa Byrne Hessick 49 Seven Attorneys Honored for Pro Bono Service Contents Continued on Page 2

Lawyer The Arkansas Vol. 53, No. 4

in this issue ArkBar News

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First Annual Week of Service

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Congratulations to the New ArkBar Members

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Disciplinary Actions

51

Arkansas Bar Foundation

57

In Memoriam

59

Classified Advertising

60

columns

President’s Report

7

Suzanne Clark

Young Lawyers Section Report

9

Sarah C. Jewell

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors

Vol. 51, No. 1, Winter 2016 online at www.arkbar.com

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Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising

Cover Photo by Mike Pirnique Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Geoffrey Denzil Hamby, Susan K. Kendall, George M. Rozzell, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: Payton C. Bentley, Earl Buddy Chadick, Leslie Copeland, M. Scott Hall, Jason M. Hatfield, Brian C. Hogue, Sarah Coppola Jewell, Jarid Markus Kinder, Alan Lee Lane, Richard Kyle Lippard, John Pesek Delegate District A-3: James A. Arnold II, Craig L. Cook, Keith M. Kannett, Joseph Karl Luebke, Samuel M. Terry Delegate District A-4: Justice Paul Danielson Delegate District A-5: Johnny L. Nichols Delegate District A-6: Delegate District A-7: Samuel J. Pasthing Delegate District B: Darryl E. Baker, David Biscoe Bingham, Jordan Broyles, Bart W. Calhoun, Chase Carmichael, Tim J. Cullen, Thomas J. Diaz, Tony Anthony DiCarlo III, Jason W. Earley, Edie Ervin, Brent Eubanks, Jesse J. Gibson, Shana Woodard Graves, Christopher Heil, D. Michael Huckabay, Jr., Ashley Welch Hudson, Amy Dunn Johnson, Jamie Huffman Jones, Victoria Leigh, Kathleen Marie McDonald, J. Cliff McKinney II, Jeremy M. McNabb, David Stockley Mitchell, Jr., Meredith S. Moore, Ruthanne Nash Murphy, Jordan Rogers, Molly S. Shepherd, Scott Michael Strauss, Jonathan Q. Warren, David H. Williams, Heather Goodson Zachary Delegate District C-1: Robert F. Thompson Delegate District C-2: Delegate District C-3: Robert J. Gibson, Warren Curt Hawkins, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Christopher Michael Bryant, Matthew Coe, Kathie A. Hess Delegate District C-6: Danny M. Rasmussen Delegate District C-7: Ginger M. Stuart Delegate District C-8: Margaret Dobson, George A. Lea, Carla M. Martin Delegate District C-9: Katelyn Burch Busby, Lee Douglas Curry Delegate District C-10: Amy Freedman, Joshua R. Thane Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Brenda Sue Simpson Delegate District C-13: Brian M. Clary, John Andrew Ellis Law Student Representatives: Clayton Rowe, University of Arkansas School of Law; Kristina Lee Farmer, UA Little Rock William H. Bowen School of Law

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ArkBar News Congratulations to Members Celebrating Their 25th Year of Practice Kala R. Albright Kay Baxter Deborah Pike Bliss Karla M. Burnett James Allen Carney Jodi G. Carney Ernest B. Cate Vincent Chadick Stephanie Houston Chamberlin David Mayo Clark Katharine R. Cloud Wade Coggins Janet Carney Croom Darrin F. Davidson Jeannie Denniston Thomas J. Diaz Ralph A. Downs III Cynthia Estes Todd C. Ferguson Gene A. Franco D. Chris Gardner Lisa Greenwood George Barbara Ann Griffin Mark A. Hagemeier Kenneth N. Hall Blake P. Hanby Neal L. Hart Bruce P. Heffner Lauren E. Heil Ava M. Hicks Stephanie G. Holder Lori Holzwarth Mary Ann Jackson Gena M. Jennings Wendy L. Johnson Rebecca A. Jones Paul W. Keith Valerie L. Kelly Stephen A. Lisle Clinton D. McGue

Hunter T. McLean John Rowland Monroe Theresa S. Nazario Raymond Lee Niblock Michelle Banks Odum Thomas E. (Gene) Osment, Jr. John Richard Peel Beni Shane Perry Robert N. Presley II Leisa Pulliam Shay W. Raycher Brian D. Reddick Ross N. Ridout Sean F. Rommel Timothy L. Russell Laura Kehler Shue David Clay Sloan Elizabeth Smith James W. Smith Emily Sneddon John T. Starling Heather Hendrix Starnes Joanna Boyles Taylor Kelly S. Terry Dena L. Turner Diana H. Turner Richard Edwin Ulmer Nicole Graham Vaccarella John Cogan Wade Keena V. Wamble Linda C. Ward Kimberly R. Weber Eric D. Wewers Penny B. Wilbourn Darrin L. Williams Reba M. Wingfield Roger Todd Wooten M. Keith Wren R. Scott Zuerker

2019 Mock Trial Competition Call for Volunteers It’s that time of year again! The Arkansas Bar Association Mock Trial Committee has just released the case materials for the 2019 High School Mock Trial Tournament, and high school students across the state are beginning to prepare for trial this spring.

With the competition re-incorporating a regional format, we will need volunteers from across the state to make this event a success. The Regional Competitions will be held on Saturday, March 2, 2019, at all locations: Northwest Regional in Fayetteville; Northeast Regional in Jonesboro; South/Central Regional in Pine Bluff. The State Championship will be held in Little Rock on Saturday, March 30, 2019. There is no prior Mock Trial experience necessary to judge one of our rounds! The Mock Trial Committee provides a volunteer orientation prior to each round of competition. To volunteer, please visit https://www.arkbar. com/armocktrial/home.

ArkBar Welcomes New Staff Member Jennifer Jones joins the Association’s staff as the Membership & Meetings Coordinator.

Jennifer most recently worked as an Event Coordinator and Sales Manager for the Little Rock Convention and Visitor’s Bureau. She has over seven years experience in meeting planning and sales. Jennifer has been afforded the opportunity to work with many clients throughout the years ranging from small meetings to large conferences, BroadJennifer Jones way shows, concerts and much more.

Jennifer was born and raised in Little Rock and enjoys traveling, meeting new people and working out at her local CrossFit gym.

“Jennifer has great insight and experience in creating engaging events,” Executive Director Karen K. Hutchins said. “She has exceptional communication skills and excels under pressure. She will be a great addition to the Association planning both small and large events including the Mid Year and Annual Meeting.”

Thank You for Your Membership The Arkansas Bar Association thanks you for your membership and commitment to sustaining our profession and association. We want to make that you get the most out of your membership.

For a complete list of carefully curated resources 2018-2019 for your advantage please visit www.arkbar.com/ for-attorneys/membership. Please contact Anna at ahubbard@arkbar.com if you would like a copy of the new member decal shown here for your website or email.

Λορεμ ιπσυμ δολορ σιτ αμετ, χονσεχτετυερ αδιπισχινγ ελιτ, σεδ διαμ νονυμμψ νιβη ευισμοδ τινχιδυντ υτ λαορεετ δολορε μαγνα αλιθυαμ ερατ ϖολυτπατ. Υτ ωισι ενιμ αδ μινιμ ϖενιαμ, θυισ νοσ ♦

Class of 1994 4

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ArkBar News

Oyez! Oyez!

ACCOLADES The Association of the Bar for the United States Court of Appeals for the Eighth Circuit awarded the Richard S. Arnold Award for Distinguished Service and Lifetime Achievement to William A. Waddell, Jr., Friday, Eldredge & Clark, and Charles Ledbetter, Ledbetter, Cogbill, Arnold & Harrison. Denver Peacock, principal at the Peacock Group, recently graduated from the Delta Regional Authority’s Delta Leadership Institute Executive Academy. Antwan Phillips, Wright Lindsey & Jennings, was recognized by Soireé magazine for his work with Think Big Little Rock and Big Brothers Big Sisters of Central Arkansas. Talk Business & Politics recognized Katelyn “Kattie” Eaves, Friday, Eldredge & Clark; Samuel M. Terry, First National Bank of Fort Smith; and Catey Vo, Wright Lindsey Jennings, for inclusion in the 2018 “Forty Under 40” class. Joseph W. Price II, Quattlebaum, Grooms & Tull PLLC, has been selected to participate in Class XXXIV of the Leadership Greater Little Rock program, an initiative of the Little Rock Regional Chamber of Commerce. The St. Thomas More Society of Arkansas honored Frank B. Sewall, an attorney for Blue Cross & Blue Shield of Arkansas, with the St. Thomas More Award for his service to his church and his profession. Thomas G. Williams, a Managing Member at Quattlebaum, Grooms & Tull PLLC, has been inducted into the American Board of Trial Advocates

APPOINTMENTS AND ELECTIONS Joseph W. Price II, Quattlebaum, Grooms & Tull PLLC, has been elected to a three-year term on the UAMS College of Health Professions Advisory Board and has been appointed as the Defense Research Institute Membership Chair for Arkansas. Wright Lindsey Jennings partner Glenn S. Ritter has been selected for a one-year term to the Post-Acute and Long Term Services Practice Group Leadership Development Program of the American Health Lawyers Association. Wright Lindsey Jennings partner Baxter D. Drennon has been appointed Chair of the Young Lawyers Committee of the Defense Research Institute.

WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that Brittany S. Ford and Samantha R. Wilson have joined the firm as associates with a focus on litigation. Eric Brock has been hired as a bankruptcy and contracts attorney with Kristin Riggan, Attorney at Law. Lindsey Emerson, Sarah Giammo and Caitlin Kennedy have all joined Friday Eldredge & Clark at the firm’s Little Rock office, and Andrew Lawson will be working at the firm’s office in Rogers. Nicole Gillum has joined Capitol Advisors Group in Little Rock as a lobbyist and general counsel. The Arkansas Environmental Federation announced that Ava Franks Roberts has been chosen as its new executive director. Jennifer Wilson-Harvey and Stan Miller announced the formation of Wilson + Miller, PLLC, an estate and elder law firm. The business support operations will be headquartered in Little Rock and will, over time, utilize the six office locations of Wilson & Associates in Arkansas, Tennessee, and Mississippi as well as other locations. Rebecca Adelman announced she resumed full operation of her firm, Adelman Law Firm, which was originally founded in 2001. The firm will serve Arkansas, Mississippi and Tennessee. PGMR Law announced it has hired Jim F. Andrews, Jr., as its newest counsel to the firm. Andrews will serve out of the firm’s El Dorado office. Mitchell Williams Selig Gates & Woodyard P.L.L.C. announced Celina J. Walker has joined the firm.

Please send Oyez announcements to ahubbard@arkbar.com.

Paul W. Keith New Arkansas Bar Association President-Elect Designee Paul W. Keith of Monticello is the new PresidentElect Designee of the Arkansas Bar Association.

He was elected without opposition at the close of nominations on October 31, 2018.

Paul is an attorney with Gibson & Keith in Monticello and serves as Hamburg’s city attorney. He has been actively engaged in the Arkansas Bar Association for many years. He currently serves as chair of the Jurisprudence and Law Reform Committee and recently served as chair of the Board of Governors.

He served as chair of the 2015 Annual Meeting and as chair of the Continuing Legal Education Committee for two years.

He has served on the Mock Trial and Long Range Planning Committees and the Strategic Governance Task Force. The Association has awarded him two Golden Gavel Awards for his service. Paul was recently appointed to the Supreme Court Committee on Professional Conduct and is licensed to practice before the United States Supreme Court.

Paul’s leadership capacities extend to his church and community including serving as president of the Hamburg School Board. He and his wife Kandi sing in their church choir; he also teaches Sunday school and serves as lay leader for the church. He is the Chancellor for the Southeast District of the United Methodist Church.

Paul has served as president of the Southeast Arkansas Legal Institute and as Special Associate Justice of the Arkansas Supreme Court. He is a Fellow of the Arkansas Bar Foundation. He is a three-time alumnus of the University of Arkansas at Fayetteville: B.A. in 1978, J.D. in 1993, and LL.M. in 1994. Paul and Kandi have been married 36 years and have three adult children and three grandchildren.

Paul will serve a one-year term as PresidentElect beginning in June 2019 before assuming the office of President at the Association’s 2020 Annual Meeting.

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ArkBar News First Annual Week of Service ArkBar held its First Annual Week of Service October 8-13, 2018, to encourage members to share their nonlegal community activities for that week. We know our members are out in the community every week of the year supporting our communities and below are a few highlights. If you would like to share your photos, please send to ahubbard@arkbar.com at any time.

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1-2. Tory Lewis and her husband Mark are engaged in full-time community development and church planting among the Saamakans, an indigenous, maroon tribe on the Upper and Lower Suriname River in South America. Commissioned by the Summit Church of North Little Rock and Beautiful Feet, their sending agency, the Lewises moved to Paramaribo, Suriname, in May 2017 with their three children Levi, John, and Nora. 3. Antwan Phillips of Mitchell Williams serves as co-chair of Think Big Little Rock and volunteers with Big Brothers Big Sisters of Central Arkansas. 4-5.

Sarah Sparkman teaches yoga as a volunteer at the first United Presbyterian Church in Fayetteville and the Northwest Arkansas Law Enforcement Training Academy. 6. Ashley Welch Hudson, pictured with her son C.J., 5, is the Arkansas Veteran Caregiver Fellow for the Elizabeth Dole Foundation and is a member of the UA-Pulaski Tech Foundation Board.

7. Denise Reid Hoggard of Rainwater Holt & Sexton and 8. Jordan Rogers of Access to Justice and Rita Looney (not pictured) volunteered at the Grant County Unified Community Resource Council that operates a women’s shelter, food pantry, and clothes closet. 9. Items collected for the infants at the shelter. 10-11. Kandice Bell spoke to a group of middle students from the White Hall School District who belong to an organization called Sisters in Service. 12. Deborah Pike Bliss volunteers with the group Help Rescue Arkansas fostering dogs out of shelters before they are placed in their forever homes.

13-14. A group of the attorneys at Keith, Miller, Butler, Schneider & Pawlik, PLLC in Rogers volunteered at the Samaritan Garden for the ABA Week of Service. The Samaritan Garden grows fresh fruit and produce that is cooked and served at the SCC Cafes and made available in the SCC Market food pantries. Front Row from the left: Seth White, Mary Schneider, Victoria Bruton and Beau, Jenna Fogleman, Kristin Pawlik, and John Baureis. Back Row: Caroline Currier and SaVannah Reading

PRESIDENT’S REPORT

The Value of Civility Suzanne Clark Suzanne Clark is the President of the Arkansas Bar Association. She is the founder of the Clark Law Firm, PLLC in Fayetteville.

Within the Arkansas Bar we are a collegial group. We are members of a profession that insists on civility, but our court system is necessarily adversarial.

Zealous advocacy means we argue every legal and factual advantage for our client. The other side is “the opposing party.” We will argue against the position taken by opposing counsel and may be righteously indignant on our client’s behalf that opposing counsel is taking a particular stance in our case.

Then we walk out of court and ask that same opposing counsel how the kids are doing, how sorry we were to hear about a family member’s illness; we share news of the family vacation, or just discuss the highs and lows of the last Hog game. We know that the arguments we are making are not personal. We take diametrically opposite positions, but are friendly and collegial. We do not ascribe evil motives to the other side.

Outside of court, the ability to have divergent opinions and communicate civilly about differing viewpoints appears to be in short supply. This column is being written a couple of weeks before Election Day. Much has been written about the deepening divisions in our political culture.

The descriptive term most frequently used is “tribalism,” where

loyalty to one’s party or doctrine is more important than just about anything else.

We’ve observed how Washington politics has transformed Congress into a quagmire in which winning is the most important goal. Cooperation and compromise are avoided because to compromise risks the other side getting credit for a good result. The complaint of both Democrats and Republicans, when either is in power, is that the minority party is obstructionist. There are a wealth of examples in which politicians shift positions on virtually identical issues when the balance of power favors one or the other.

It is disheartening, to say the least, when there are so many critical matters that must be addressed.

But more and more, it appears that those on opposite sides of a debate are ascribing, not just differing philosophies and positions, but evil motives. The other side is the enemy.

With the explosion of cable and electronic news outlets, people have a tendency to seek out news sources that validate their own beliefs and positions.

The echo chamber of the right or left’s news outlets reinforces the “tribal” beliefs that demonize those who do not agree with us. I recently heard James Carville give a presentation on voting trends.

He shared an interesting statistic. When he was campaigning for Bill Clinton in 1992, of the roughly 3000 counties in the U.S, there were 96 that were characterized as “supermajority counties”—counties in which the voting population was at least 75% committed to a straight party affiliation. Obviously, the campaign efforts in those counties were minimal because it was assumed to be a lost cause for the minority party and a slam dunk for the majority party. According to Carville, the number of supermajority counties in the U.S. is now 1200. That is a staggering increase that helps explain the “tribal” identification and allegiance that is now so prevalent.

Though we all seem to recognize the destructive nature of this path, the deepening divides are getting deeper.

The destructive force at play is not found in one camp or the other. The destructive force is in the inability to share ideas, cooperate, and compromise. We’ve all worked with clients who have serious disputes and tie significant emotion to being “right.” If we can move them toward a resolution, it is generally a much better solution than protracted litigation. We’ve all advised our clients that a good settlement generally means both sides are not entirely

happy, because resolution requires compromise. When the lawyers cannot get our clients to an agreement, a good mediator often helps bring objectivity to the situation, and often an agreement can be reached.

We need to be cognizant of how the attitudes outside of our practice can affect us day to day.

We each need to do our part to maintain civility in the profession and not permit the divisions that seem to be growing in our culture to invade our commitment to effect justice.

As we move through Election Day and beyond, we can be proud that our profession is one that upholds and values civility.

We can hope that the seeds of division being sown by so many will not continue to grow. But beyond hope, we can do our part to be open to all viewpoints. We can model the civility our profession requires in other endeavors. Perhaps we can have a small impact in reversing the divisive trend that is so prevalent, and demonstrate that virtually any problem can be solved through communication, civility, cooperation, and compromise. 

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ArkBar News Congratulations to the New ArkBar Members Admitted to the Practice of Law in 2018 Ambere Adkins Ryan R. Agnew Kyle Randall Akin Abel P. Albarran John Alexander Albertson Bryan Altman Garron Paul Amos Ryan Ausbrooks Rachael Ann Bakowicz John Richard Barber Cory Lee Bates Taylor Scott Beach Kathryn Blair Bennett Chad Thomas Benoit Elijah Lane Bentley Aaron Thomas Parish Black Cameron Thomas Bowden Tarja Cajudo Audrey Martha Calkins Kristen Amber Callahan Frank Danilo Cardoza Christopher Lloyd Carns Samantha J. Carpenter Mark Claibrone Carroll Krystal Suzanne Cecil Alana Jill Clark Shawnequa Charmaine Clark Cameron L. Coker James Coyne Charles Rupert Crawford Michael J. Crowe Asia Connie Cruz Margaret Caroline Currier Jason Robert Davis Cassandra J. DeCoursey Gabriel Graham DeVaux Sharnea Yvonne Diggs Elizabeth Marie Doss Kristen Joy Downey William Brennan Dunham Bailey Bethanny Egger Mariah Reid Elkins Katrice D. P. Feild J. Brian Ferguson Trevor Ferguson Alexandra S. Fernandez Dani Elizabeth Fields Brittany Sidna Ford Craig M. Foster Phillip Chase Foster Gene Allen Franco

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Carl N. Frazier-Sparks Matthew Gregory French Bianca Gianni Garcia Joel William Giddens Kimberly Glover Hunter Bryce Glenn Green Luke Mitchell Haller Austin Eliason Hansen Timothy James Harper Liz K. Harris David Trent Harrison Joseph Andrew Hawkins Walker Kays Hawkins William Townsend Hegi Emily Rae Helmick Michael G. Hemme Stacy D. Henderson Matthew Edward Hill Peter James Hilton Peggy Sue Horinek Joshua Welch Jackson Frank William Jenner Mark Tilden Jobe Lacey Alyssa Johnson Morgan Rae Johnson Martha Deacon Jones Elizabeth Ann Kanopsic Caroline Wells Kelley Caitlin Danielle Kennedy Luke Kinder Norma Pfeiffer Kirshberger Benjamin Kyle Knuckles Kristen Nipper Komander Brooks E. Kostakis Richard Joseph Kroll Jason James Laidlaw David Seth Lang Christopher R. Lassiter Andrew Lane Lawson Patrick R. Lee

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Joshua A. Leggett Megan Paige Leslie Creighton Matthew Light Keith Kristopher Noah Linder Sara Katherine Lingo Britney Nicole Lloyd Briana Erin Lynch William D. Mahoney Tisha Lea Martin Daniel Robert McGrath Jeremiah Lucius McGuire Brian McQuiston James Brandon McWherter Victoria Paloma Medina Justin Charles Meeks Nathan Landon Mendenhall Richard Joseph Meyers Randee Brooke Molsbee Reed Edward Moody David T. Moran Gina Moroni Nickolas Paul Moropoulos George R. Mullican Ross Carter Murphy Zachary Adam Musgraves Helen Arnold Newberry Jacob Tyler Newcomb Ricky L. Nolen Weston L. O’Black R. Anaicka Ortiz-Reed Colton Lee Pace Amanda Mae Pace-Welch J. Revell Parrish John Field Phillips Sarah Jane Phillips B. C. Pickett Stephanie Renee Qandah Carrie Jean Russom Quraishi Amanda Lee Rankin Powers Malorie Elizabeth Raulerson

Shawn Lawrence Raymond Hayden Alexander Redd Lane D. Reeder Patrick Morgan Rees John Keary Richards Casey Nicole Richmond Cole Alan Riddell Alexander C. Rogers Victor Ruben Rojas Jacob Russell Elizabeth Paige Rystrom Mathew Anthony Schuh Seth Andrew Shaw Kimber Shoop Kelly D. Simpkins A. Mark Smiling Jeffrey Sonnabend James Daniel Stayton George Vieths Steffens Troy Thomas Stewart Kathryn N. Stidham Forrest C. Stobaugh Tasha Strickland Jennifer Marie Studebaker Betty Suasnabar Lopez Michael Joseph Tackett Robert J. Talaska Madeline Jamay Taylor Brooke Marie Thompson Tasha Ann Tidwell Zachary Wendl Tkach Zachary R. Trail Phillip Glenn Treat Kim Vu-Dinh Gentry Carlin Wahlmeier Brett Mitchell Waldrip Celina Jacqueline Walker David Cameron Walker Evin Elizabeth Walker Brie Danielle Wallace Whitney Alexander Wayne Susan Corie White Billy J. Williams Nicholas C. R. Williams Taylor Norman Williams Malissa Wilson Megan Michelle Wilson Jake Garrison Windley Andrew Stewart Winters Michael Lloyd Yarbrough

YLS REPORT

Fall Back

By Sarah C. Jewell Fall. Autumn. Harvest. The end of the growing season. The cooling off season. Football season.

Blazing foliage. Shorter days.

Brilliant sun. Crisp air. Darkness. #winteriscoming Change. With less daylight and cooler temperatures, chlorophyll breaks down and the green fades, revealing yellow, orange, and red pigments. The changing of the leaves is a cheerful hallmark of fall, but change comes in other, more melancholy ways too. Shorter days mean less daylight, which for me always equates to less time.

Fewer daylight hours to get it all done. Fall days often feel less vibrant and productive. And let’s face it—it’s often the things we enjoy that we cut out first. Less daylight doesn’t really affect our work lives. We don’t take fewer depositions, file fewer motions or accept fewer cases because there’s less daylight. It’s our personal time in the evenings that suffers. Many of us are less active in hobbies and overall less likely to get out in the evening when it’s dark and cold. It’s far less enjoyable to go to the gym when it’s too dark to run or bike outside. So, we work longer hours.

Balance. While autumn brings change, it also presents a great opportunity to seek and find balance. Day and night are the same length during the au-

tumnal equinox, representing a sort of balance at the start of fall. It’s the perfect season to be mindful of balance in our own lives.

Preservation. Animals store food to prepare for winter.

Honey bees store nectar. Squirrels stock up on nuts. This is a concept we’ve known since we were children. It’s self-preservation. It’s instinct.

We humans, especially lawyers, aren’t as good at self-care.

Sometimes packing in more work and obligations is more instinctive than self-care. A time for change and finding balance, autumn is the prime season to be mindful of what our bodies and minds need to thrive. We know we are more than settlements or verdicts or billable hours, but it can be difficult to see it that way especially for young lawyers. We constantly tell ourselves that we’ll take a vacation when things slow down and we’ll have a chance to relax in a few more years, then we reassure ourselves that things will surely slow down in a few more years. But they won’t because there’s always something new to juggle.

Life happens in seasons and balance is more difficult to achieve in some seasons. I think most of us are on a perpetual search for the balance. If, like me, you’re disheartened by fall evenings devoid of sunlight, try

being more mindful of how you can use the time when you’d usually be active outdoors or on the go. Try using the time to find some balance in your life and practice self-care. Take the time to plan your next vacation. Try yoga. Reconnect with friends.

Learn a new recipe. Read a book for pleasure. Host a game night.

Get active in YLS. Spend time

Sarah C. Jewell is the Chair of the Young Lawyers Section. She is an attorney with the Daniels Law Firm, PLLC in Fayetteville.

with people you love. The only constant is change, so spend time on self-care and you’ll be reinvigorated and energized in the face of change.

Thank you to YLS for hosting a fun tailgate party at the Razorback game in Fayetteville on September 15. The party wrapped up a YLS Executive Council retreat. Stay tuned to see what YLS has in store for this bar year.

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Remembering Those Who Served

Editor’s Note: This issue of The Arkansas Lawyer magazine is dedicated to honoring those who have served in the United States military with a listing of Arkansas Bar Association members who have served or are currently serving.

David Dero Phillips was at the Pentagon, in the Budget Integration Office, 3E479, on September 11, 2001, when his office was destroyed in the terrorist attack. He was standing approximately 20 feet from the path of the airliner when it hit. Read about his story on page 20.

The Arkansas Korean War Veterans Memorial featured on this page and on the cover of the magazine is located on the grounds of the MacArthur Museum of Arkansas Military History in Little Rock, which recently reopened after a six-month renovation. The Museum, established in the historic Tower Building of the Little Rock Arsenal features a collection of artifacts, photographs, weapons, documents, uniforms and other items that depict the story of Arkansas’ military heritage from the territorial period to the present. Read the Director of the Museum, Stephan McAteer’s, short history of the museum on the next page.

Steven S. Zega, Lieutenant Colonel, Arkansas Army National Guard, is a Judge Advocate (JAG) and the State Military Judge for Arkansas. He writes about “Military Justice in the Arkansas National Guard” on page 24 to help guide attorneys who may choose to practice in Arkansas courts-martial.

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T

he Arsenal Building, home to the MacArthur Museum of Arkansas Military History, stands today as a monument to our state’s rich military past.

Constructed in 1840, just four years after Arkansas achieved statehood, it was the first structure of the Little Rock Arsenal, a symbol of federal protection in a still largely frontier community. Used by both Federal and Confederate forces during the Civil War, it exemplified our country’s deep divisions as Americans fought Americans in a conflict that produced almost as many casualties as occurred in all the nation’s other wars combined. After the Civil War the Arsenal Building became the birthplace of a military legend—General Douglas MacArthur—and continued to function until the War Department closed the military post in 1892.

The closure of the Little Rock Arsenal paved the way for a much larger military presence in Arkansas that endures to this day. Its successor, Fort Roots, trained troops until World War I when it was supplanted

by Camp Pike. The site was renamed Camp Robinson in 1937 and became a massive military installation during World War II, training more than 750,000 soldiers. During the war almost 200,000 Arkansans, representing 10 percent of the state’s population, served in various branches of the armed forces. At home Arkansans did their patriotic duty as well, ranking 12th nationwide in war bond sales. Six ordnance plants located

across Arkansas, employing mostly women workers, produced hundreds of millions of pounds of war materiel for the war effort.

Our state’s military tradition continued in the postwar period with the creation of the Little Rock Air Force Base in Jacksonville in 1955, the largest C-130 aircraft base in the world. From its origins on a small 36acre site on the outskirts of Little Rock, the military presence in Arkansas has produced a heritage of service, sacrifice, and honor.

As we observe Veterans Day, it is imperative that we remember the contributions of our veterans whose valor preserved the freedoms we enjoy today. Each year at this time I am reminded of a manuscript I was privileged to read almost 20 years ago, shortly after I became director of the military museum. Written by a local business leader, it detailed his harrowing experiences during the Battle of the Bulge in World War II. In his preface, the author explained the reason he wrote about his experiences—so that his grandchildren and subsequent generations of his family could understand that their aged grandfather was once a young 19-year-old Arkansan fighting halfway around the world, risking his life because his country and state called him to serve. His story, and that of thousands more, are to be cherished and preserved. We salute them for their service.

—By Stephan McAteer, Director, MacArthur Museum of Arkansas Military History

“As we observe Veterans Day, it is imperative that we remember the contributions of our veterans whose valor preserved the freedoms we enjoy todaY. . . . We salute them for their service.”

Photos by Mike Pirnique

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Members who have served in the U.S. Armed Forces To continue honoring and remembering those who served, this list is a reprint from features in the Fall 2013 and Winter 2014 issues of The Arkansas Lawyer magazine with a few updates included. The list was compiled from members’ contributions and is not inclusive. If you know of someone who should be included in future publications, please contact the editor.

Overton Anderson, Officer, U.S. Naval Reserve, Judge Advocate General’s Corps, 1968-1972; stationed in Newport, Orlando, the Philippines and Memphis.

Philip S. Anderson, Second Lieutenant, U.S. Army Adjutant General’s Corps, 1959-1960; Captain in the Reserves 1968.

Frank Bailey, Sergeant, U.S. Army; served in country DaNang/ Camp Eagle, Vietnam; attached to the 23rd Infantry and 101st Airborne; Vietnamese language trained counter intelligence agent; honorable discharge, 1971.

Judge Harry Barnes, Colonel (Ret.), U.S. Marines Reserve, Annapolis Grad.

Fines F. Batchelor, Jr., in the Army Air Force Reserve, March 10, 1944, to May 25, 1945.

Enlisted active duty in the Army Air Force from May 25, 1945, to December 12, 1945. Army Air Force Reserve and U.S. Air Force Reserve from December 13, 1945, until March 1, 1951. U.S. Air Force active duty from March 2, 1951, until November 28, 1951. Commissioned June 1951 a Second Lieutenant in U.S. Air Force Reserve with the OSI and transferred to JAG in 1962 and to the Air Force Academy Program in 1978, with a 28-year retirement as Lt. Col. in 1979 and retirement in 1987. Served dual, enlisted active duty and Reserve Commissioned service from June 1951 from November 28, 1951.

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Jonathan W. Beck, Sergeant, U.S. Army Reserves, 755th Postal, 1998-2006, including active duty service in support of Operation Iraqi Freedom in 2003.

Ronny J. Bell, Staff Sergeant in U.S. Air Force, Security Service, 1965-1969.

Joe Benson, First Lieutenant, U.S. Air Force, 1972-1976; 21st Special Operations Squadron, Nakhon Phanom Royal Thai Air Force Base, Thailand 19731974; 601st Tactical Air Support Squadron, Wiesbaden and Sembach Air Bases, Germany, 1974-1976.

Ed Bethune, Sergeant, U.S. Marine Corps, 1954-1957.

Allen W. Bird II, Lieutenant Commander, U.S. Navy Reserves, 1968-1973.

Sam N. Bird entered Air Force Officer Training School November 9, 1962, and was commissioned a Second Lieutenant February 4, 1963. Following nine months of training and being designated a graduate with honors from Intelligence Communication Officer’s School at Goodfellow AFB, TX, he was assigned to the Air Force Security Service’s Special Security Office (SSO) in Ankara, Turkey, in January 1964, was promoted to 1st Lt. August 1964, and to the position of OIC of SSO Ankara in January 1965.

Upon completion of his tour of duty in Turkey in July 1966, he

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was assigned to Air Force Security Service Headquarters, Kelly AFB, TX, was promoted to Captain in March 1967, and remained at Kelly AFB until his honorable discharge from active duty on August 31, 1967, to attend UA School of Law. Thereafter, he remained in the Air Force Reserve until discharge on November 8, 1968.

Judge Denzil Keith Blackman, Lieutenant Colonel (Ret.), U.S. Army Reserve. Commissioned on 5-26-71; retired on 5-26-98 as lieutenant colonel; Branch: air defense artillery.

William Jackson Butt, II, Major, U.S. Army Judge Advocate General’s Corps, active duty; regular Army 1972-1979, airborne ranger qualified with duty at the Pentagon, Germany, Korea, and Army Security Agency; Reserves 1979-1992.

LeAnne Pittman Burch, Brigadier General (Retired), U.S. Army Reserve. U.S. Army Judge Advocate General’s Corps, Active Duty 1986-1998; U.S. Army Reserve 1998-2016.

Worth Camp, Captain (Ret.) U.S. Navy Reserve, active duty 1957-1960 with deployment on the USS Midway, CVA 41, to the Western Pacific, during the Matsu-Quemoy Crisis of 1958 when General Eisenhower was President.

Jennifer Carlisle, Major (Ret.), 189th Airlift Wing, Arkansas Air National Guard. She enlisted on

December 6, 1990, was commissioned in July 1996 and retired in July 2011.

John Phillip Carroll arrived at the front lines in Europe as a 19-year-old Squad Leader, Staff Sergeant. On a bitter snowy day in January 1945, Phil along with his unit was captured by the German Army Panzer Division in the battle of Hatten, which occurred just after the Battle of the Bulge. He was captured and became a German prisoner of war in Stalag IV B until the war’s end. Only three months after gaining a job with the Rose Law Firm, Phil was called back to duty for the Korean War. Visit https://www.dailyrecord.us/ default/view?id=4546 for feature story in the Daily Record, March 26, 2013.

John S. “Jack” Cherry, Captain, U.S. Army Reserves; served two years as a signal officer in Germany and remained in the Army Reserve for several years in the 1970s.

Judge Gerald K. Crow, U.S. Army; Vietnam 1967-68 and 1972. He entered the service as a private and left the service as a captain to attend law school. He served with the Recon Platoon, E Company, 2/506 Infantry, C Company, 2/506 Infantry, as an enlisted man; served as a Warrant Officer helicopter pilot with the 23rd Artillery Aviation Section and with the 192nd Assault Company; served as a company Commander with the

Anderson

Beck

Bell

Benson

Bethune

Bird A.

Bird S.

Burch

Butt

Camp

Carlisle

Crow

Curry

Dodd

Gibson

Hamilton

Harrod

Hatfield

Henry

Hyden

Lowe

Martin

McMath

McKay

Nelson

Ourand

Overholt

Owen

Pettus

Phillips

Powell

Rabal

Randall

Rather

Rhodes

Ritter

Ross

Savells

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Singleton C.

Singleton D.

Suskie

Terry

Thomas

Turner

Wade

Warrick

Williams

Wilson

Woods

Zega

Ulmer

Sherman

Volpe

USS Denver (LPD-9)

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William D. Haught, Captain, U.S. Army Judge Advocate General’s Corp from 1964-1968; served initially in the Eighth Army Support Command at Seoul, Korea, and subsequently in the Office of the Judge Advocate General (in the International Affairs Division in Washington, D.C.).

Butt

Hamilton

2nd Infantry Division (Korea) and as an Operations Officer and Battalion Executive Officer for the 7th Infantry Division. He received the Bronze Star for Valor, Purple Heart, Meritorious Service Medal, Air Medal, Combat Infantry Badge, Army Aviator, Parachutist badge and a few others.

Tom Curry, Colonel (Ret.), U.S. Army Judge Advocate General’s Corps; commissioned 1979; law school deferment 1979-1982; active duty 1982-1987; U.S. Army Reserves 1987-2009.

Jerry Dodd, U.S. Air Force, 1975-1986; AF Judge Advocate General’s Corps, 1979-1986.

Jack Else, U.S. Air Force, 19711991.

Bob Estes, U.S. Army, 19691972.

John C. Everett served in the U.S. Navy Judge Advocate Corp., serving as Trial Counsel, Defense Counsel, and Military Judge (1968-1974, Active Duty 1970-1974).

Sam Gibson was commissioned into the U.S. Army Reserve through the University of Arkansas ROTC program in June 1968. He was transferred to the Retired Reserve 22 November 2002 at the rank of Brigadier General.

John P. Gill, Lieutenant Colonel, U.S. Marine Corps, 1960-1988.

Morton Gitelman, Sergeant, U.S. Army, 1954-1956.

James C. Graves, U.S. Navy, 1967-1971.

Ron Griggs, U.S. Navy.

Judge David F. Guthrie, Lieutenant Colonel (Ret.) U.S. Army Reserves 1971-1999, active duty in Saudi Arabia during Persian Gulf War 1990-1991.

Garrett Ham, First Lieutenant, one year, Trial Counsel for the 77th Aviation Brigade, Arkansas Army National Guard.

Thomas P. Guarino, U.S. Navy, 1977-1979, Ocean Systems Technician, E-3.

Don F. Hamilton, U.S. Marine Corps Reserve, 1955-1957; U.S. Army Reserve, 1958-1964, serving two years active service 19581960, 1st Lt., Artillery, Korea (DMZ) for 13 months with “D” Battery, 2d Howitzer Battalion, 8th Artillery, 7th Infantry Division, Forward Observer and Liaison Officer.

David Gibbons, U.S. Army Infantry, 1970-1973.

Stuart W. Hankins, First Lieutenant, U.S. Army, 1966-

Mark Fryauf, Commander (Ret.), U.S. Navy Reserves, active duty 1979-1987.

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1969; served as Infantry Platoon Leader with 199th Lt. Inf. Bde. in Vietnam in 1968 and 1969.

Alan Harrel, U.S. Air Force, 1969-1976. He was a pilot and flew in Vietnam from 1971-1972 as a Forward Air Controller flying an O-2 light reconnaissance aircraft. He then returned to the states in the Strategic Air Command where he flew as a co-pilot in the B-52G bomber stationed at Fairchild AFB, Spokane, WA. Judge Eugene S. “Kayo” Harris received an NROTC scholarship to attend Duke University; served three years on active duty and 17 years in the Reserve, retiring with the rank of Commander.

Dave Wisdom Harrod, Captain U.S. Air Force Pilot (19651979), 62nd Tactical Airlift Squadron, Aircraft Commander; 64th Tactical Airlift Wing Headquarters Squadron, Squadron Commander.

Arkansas Air National Guard: 154th Tactical Reconnaissance Squadron, Executive Officer; 189th Tactical Reconnaissance Group, Air Operations/Air Intelligence Officer. U.S.A.F.R.: 9006th Air Reserve Squadron, Disaster Preparedness Officer.

Dick Hatfield, First Lieutenant, U.S. Army (Branch, Armor) stationed at U.S. Military Academy, West Point, N.Y. (Football Office), 1967-1969.

Matthew M. Henry, Arkansas Army National Guard 19911997. He was a Specialist upon discharge and a clerk for the 217th Maintenance Battalion Headquarters in Russellville.

Robert L. “Skip” Henry, Capt., U.S. Marine Corp Reserve, Infantry and Military Police, 19671972; Major, U.S. Army Reserve, JAG, 1973-1989, serving in 431st Civil Affairs Company and then the 32d JAG Detachment until retirement in 1989.

Donald C. Hill, Captain (Ret.), U.S. Navy, 33 years of service: jet carrier pilot (Intelligence); Attorney, Adjunct Instructor at the U.S. Naval War College, Oceans Law and Policy (International Law Department); an editor of the “Commander’s Handbook on the Law of the Sea” and the department’s Blue Book Series associated with the Department’s prestigious “Stockton Chair;” member, War College Foundation; served during Vietnam conflict and flew in the combat zone of the Gulf War before being selected to serve at the U.S. Naval War College. One-half of his practice is volunteer work for disabled veterans residing overseas, seeking VA benefits. He is licensed before the U.S. Court of Appeals for Veterans Claims, among others. He is a “Distinguished Naval Graduate” of the Naval Flight Training School.

James W. Hyden, U.S. Naval Officer Candidate School, Newport, RI, commissioned Ensign, U.S. Naval Reserve, 1967. Served in the Pacific Fleet 1967-70 and onboard USS

DENVER (LPD-9) as part of the commissioning crew (“plank owner”). He was an unrestricted line officer and a division officer and department head aboard DENVER, an amphibious landing ship. The ship carried, landed and supported a reinforced U.S. Marine combat battalion—about 1000 troops. After graduating law school, he stayed in the Naval Reserve, serving in units in Fayetteville, Norfolk, VA, Pine Bluff and Little Rock, serving until 1986, completing 20 years of service, retiring with the rank of Lieutenant Commander.

Greg S. James, U.S. Air Force, 1991-1995; Arkansas Air National Guard, March 1996 to present.

C. Cole Jeffries, Jr., of Helena, Arkansas, served on active duty as a JAG officer for 20 years in the U.S. Navy. He was commissioned in August 1970 and retired from the Navy in July 1990 and then entered private practice in Tampa, Florida.

Glenn W. Jones, Colonel (Ret.), U.S. Army Reserves; served 30 years in the Army Reserves; former Commander of the 431st Civil Affairs Company (now Battalion); received two Army Commendation Medals and a Humanitarian Service Award.

Tim Leathers, Captain, U.S. Army Reserve, Judge Advocate General’s Corps, nine years.

John C. Lessel, commissioned Ensign, U.S. Navy, December 1970. Completed aviation training and awarded wings at Meridian, MS, in September 1972. Assigned to VA-127 (A-4 replacement air group), NAS Lemoore, CA from September 1972 to August 1973. Selected for and attended University of San Diego School of Law on Navy program from September 1973 through May 1976.

Redesignated from line to staff as member of Judge Advocate

General Corps during law school.

Served at Naval Legal Service Office, San Diego, May 1976 through July 1979. Attained rank of LCDR, JAGC, USNR. Fletcher C. Lewis, First Lieutenant, U.S. Army, 19681974.

Stark Ligon, Colonel (Ret.), U.S. Army Judge Advocate General’s Corps; served in the Arkansas Army National Guard from 1968-2003; served as State Judge Advocate.

Chester C. Lowe, Jr., Captain, U.S. Army Reserves; served two years active duty, 1962-1964, as an infantry officer, including service with the 1st Cavalry Division in Korea.

Robert M. Lyford, Captain, U.S. Army Judge Advocate General’s Corps, 1971-1976.

William A. Martin served 28 years as an Air Force lawyer, retiring as a colonel in October 1983. Major Air Force assignments included: Chief of Claims and Tort Litigation Division, Headquarters U.S. Air Force; Staff Judge Advocate (General Counsel), Oklahoma City Air Logistics Center; Legal Advisor to Commander, U.S. Forces, Japan and Staff Judge Advocate (General Counsel), Fifth Air Force; and Staff Judge Advocate (General Counsel), Air Training Command. His decorations include the Legion of Merit with one oak leaf cluster, Meritorious Service Medal with two oak leaf clusters, Joint Services Commendation Medal, and Air Force Commendation Medal with one oak leaf cluster.

Harrod

Philip McMath, Captain, U.S. Marine Corps, active duty from 1967-1970. He was a tank platoon commander and company commander with 1st. Tank Bn, 1st Marine Division in Vietnam.

He was a tank platoon commander and Assistant S-3 2nd Tank Battalion, 2nd Tank Bn at Camp LeJeune, NC. James McMenis, Major (Ret.), U.S. Army, Judge Advocate General’s Corps, active duty with JAG 1973 to 1993.

Lee Muldrow, Captain, U.S. Air Force, 1968-1973.

J. R. Nash, U.S. Air Force, 1960-1966. Served at Indiana University, then as Russian translator in Bering Strait, followed by tour at Command Headquarters, Security Service (military arm of National Security Agency).

Edward Nelson, First Lieutenant, U.S. Air Force, 1974-1978, stationed at Little Rock AFB with 308th Strategic Missile Wing serving as a Missile Combat Crew Commander for Titan II missiles in Arkansas.

Phillip A. McGough, USAF 1972-1976, Sergeant.

Frank B. Newell, U.S. Army Reserve, 431st Civil Affairs, 1969-1975, enlisted.

Joseph P. McKay, Captain, U.S. Army 1988-1994, Artillery Platoon Leader Persian Gulf War 1990-1991, U.S. Military Academy Class of 1988.

Richard C. Ourand, Jr., Lieutenant Colonel (Ret.), U.S. Air Force; served 28 years in the Air Force (1979-2007). He is

currently a government attorney in Indianapolis, Indiana, with the Defense Finance and Accounting Service (DFAS) handling military/civilian/retired pay issues and claims.

Hugh Overholt, U.S. Army Judge Advocate General’s Corps, Major General and U.S. Army JAG Major General and Judge Advocate General. His military education includes the JAGC Basic and Advanced Courses, Airborne School, Command and General Staff College and the National Defense University.

General Overholt has been awarded the Distinguished Service Medal (Oak Leaf Cluster), Legion of Merit, Department of Defense Meritorious Service Medal (Oak Leaf Cluster), and the Army Commendation Medal (Two Oak Leaf Clusters).

William L. Owen was commissioned in the U.S. Army Reserves on 5 June 1965. Active service and reserve duty. Transferred to the Retired Reserve as a Major, JAGC. Walter Paulson, MG (Ret), U.S. Army and Army National Guard, Sept. 1970 to April 2005; bio in AR Mil Vets Hall of Fame, class of 2018.

Leon Francis Pesek, Sr., was a Korean War Army veteran and former JAG officer.

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Ret. Brigadier General LeAnn Burch

Carlisle

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Thomas

Ellis Lamar Pettus, Commander, U.S. Naval Reserve; served as Repair Officer and Damage Control Officer on board the USS Oklahoma City, CLG 5 and as Engineer Officer on board the USS Hammerberg, DE 1015 during his active duty career from 1968-1971. He was awarded the following medals: Navy Commendation, Navy Achievement, National Defense Service, Vietnam Service, Vietnam Campaign Medal with Device and the Armed Forces Expeditionary Medal (Korea).

After leaving active duty, he continued his service for the next 17 years by remaining active in the U.S. Navy Reserve. Pettus also attended the Navy War College for reservists. Toward the end of his career, he moved from surface warfare to the Judge Advocate General’s Corp. In 1988, CDR Pettus retired as a Commander, U.S. Navy Reserve (JAG).

Brian D. Rabel, U.S. Air Force, 1994- 2000.

Adam Rose, Captain, U.S. Army, serves with the 142d FiB in Fayetteville, which is a Brigade of the Arkansas Army National Guard. He is a Judge Advocate and serves as Trial Counsel for the Brigade. He has been in the Guard since August 2011.

World War II, serving three and one-half years in the U.S. Army Infantry, including two and onehalf years in France and Germany during and after the war. He was awarded the Bronze Star for Valor, a battlefield commission as a Second Lieutenant at age 19 (then one of the two youngest commissioned officers in the European Theater), the Army Commendation Medal, and a Presidential Citation, all for his heroic service during the war.

David Dero Phillips, U.S. Army Military Police Corps, 19842005.

T. Scott Randall, Major, U.S. Army Judge Advocate General’s Corps, assistant professor at the Judge Advocate General’s Legal Center and School in Charlottesville, VA (the third U of A graduate in a row to serve in that position). He has been in the Army since 2003. Prior to that (1993-2001), he was a mortarman in the Marine Reserve serving with 3/23 India Company, 4th Marine Division at Camp Robinson.

Gordon S. Rather, Jr., Lieutenant, U.S. Navy. Active duty from 1961-1965 and Navy reserve from 1965-1968. Served as Operations Officer on a Destroyer based in Mayport, Florida. Ship made three six-month deployments as part of the U.S. Sixth Fleet in the Mediterranean.

Richard A. Reid, Captain, U.S. Army Judge Advocate General’s Corps.

George E. Pike, Jr., U.S. Army National Guard, 1955-1961.

Byron Cole Rhodes, Lieutenant Commander (Ret.), U.S. Navy, 1978-1994.

George Plastiras, U.S. Army, 1955-1956.

George Ritter, U.S. Naval Academy, 1961.

David M. Powell, U.S. Army, active duty in military intelligence, 1970-1971, with service in Vietnam.

Allen P. Roberts, Private (E-1), U.S. Marine Corps, 1959-60, U.S.M.C. Reserves, 1960-1965.

Donald E. Prevallet, U.S. Air Force, Colonel, 1959-1989.

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William S. Robinson, Major (Ret.), U.S. Army National Guard.

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James (Jim) A. Ross, Jr., Lieutenant, U.S. Navy Judge Advocate General’s Corps, 19621965.

Herb Rule, First Lieutenant, U.S. Marine Corps Reserve, Artillery and Intelligence officer, 3d Marine Division 1959-61.

Stationed in Okinawa, Japan, Philippines, N. Borneo.

Thomas S. Russell, U.S. Army, 1969-1971, the last five months in Vietnam.

Marissa A. Savells, Captain, U.S. Air Force Judge Advocate General Corps. A third generation AF officer, she commissioned as a Second Lieutenant from AFROTC at University of Arkansas in 2010. After law school in Fayetteville, she served on active duty for nearly five years and entered the U.S. Air Force Reserve in 2018. She is currently serving as the Deputy Staff Judge Advocate for 913 Airlift Group, LRAFB. Eugene L. Schieffler, U.S. Air Force, Judge Advocate.

Robert Luther Shults, Jr., was a decorated combat soldier in

Dennis Shackleford, graduate of U.S. Air Force Pilot Training School in 1953; Korean Conflict 1953-1954; Helicopter Pilot, Air Rescue Service.

Corey Seats, Lieutenant Colonel (P); served over 21 years in the active army and the Arkansas Army National Guard. He deployed to Iraq in 2006-2007.

William F. Sherman, Brigadier General (Ret.), U.S. Army National Guard. Commissioned as a Second Lieutenant from ROTC, U of A, in branch of Infantry, June 1960.

Assignments included Platoon Leader, 2D Battle Group 9th Infantry Reg., Ft. Benning; four years with 9th Special Forces Gp and 12th Special Forces Gp, USAR (Co. D, served as A Team Ldr, S1 and S2); Judge Advocate General’s Corps officer Advanced Course (1973); Staff JA, 39th IN Brigade, four years; Operations & Training Off, Assist. Dir., AR ARNG; Commander, 2nd Bn,

Owen

153rd Inf. Reg.; SJA, STARC (State Judge Advocate); Special NG Assistant to Judge Advocate General, U.S. Army (19861990).

Charles R. Singleton served four years in U.S. Navy 1968-1972, which included four campaigns in Vietnam. Served 28 years in Arkansas Army National Guard; Judge Advocate General Corps 1981-2009, serving nine years as State Judge Advocate. Retired in September 2009 at the rank of Colonel.

Damon C. Singleton, currently serving as a Staff Judge Advocate Officer in Arkansas Army National Guard Judge Advocate General Corps in rank of Captain.

James E. Smith, Jr., First Lieutenant, U.S. Marine Corps, active duty 1968-1972.

William R. Stringfellow, Staff Sergeant, U.S. Air Force, Crew Chief & Flight Engineer on Troop Carrier and Cargo Aircraft, 1953-1957 (active duty), 19571961 (reserve duty).

William L. Terry, U.S. Air Force, World War II Veteran. Served in the European Theatre with the 8th Air Force, 388th Bomb Group as an Aerial Gunner on a B-17. Flew 35 missions between March 1944 and August 1944.

Received the Distinguished Flying Cross and Air Medal with Oak Leaf Clusters. Visit https:// www.dailyrecord.us/default/ view?id=4546 for feature story in the Daily Record, February 12, 2012.

Corey E. Thomas, Major, U.S. Army National Guard, 2009-Present; U.S. Navy, Seaman, 1988-1989; U.S. Marine Corps, Supply and Acquisitions Officer, 1993-2003; 16 years of service.

F. Mattison Thomas, III, E-3 (Private First Class) U.S. Army; active duty 1991 to 1993; served as a military Police Officer, Seirra Army Depot, Herlong California.

Lonnie C. Turner, First Lieutenant, U.S. Army, commissioned 1966 spending 19671968 with 1st Infantry Division in Vietnam as 1st Lt. of MP platoon.

Judge John F. Stroud, Jr., Lieutenant Colonel, U.S. Air Force, 1951-1956, active duty, reserves 16 years.

Todd Turner, U.S. Army National Guard, 1988-1992.

Paul Suskie, Lieutenant Colonel, Deputy State Judge Advocate, Arkansas Army National Guard.

Richard E. “Rick” Ulmer, U.S. Army 1969-1971 at Firebase Bronco with 523rd Signal Battalion, American Infantry Division.

Hamilton

Seats

Fred Ursury, Spec. 5 enlisted man with the 6th Battalion 77th Artillery of the U.S. Army. Served in Vietnam from 1968-1969.

Wayne Williams served in the Arkansas Army National Guard from 1996-2007 and was deployed for homeland security operations (Operation Noble Eagle II) and combat operations in Iraq (Operation Iraqi Freedom II) where he held the rank of Captain.

Judge Rice VanAusdall, U.S. Army, three years active duty.

Judge Joe Volpe, Lieutenant Colonel (Ret.), U.S. Army Field Artillery; 1988-1992; Judge Advocate General’s Corps Arkansas Army National Guard and U.S. Army Reserves; 19962015.

John C. Wade, LCDR, USN, graduate of U.S. Naval Academy, Class of 1985, Surface Warfare Officer, served as Anti-Submarine Warfare Officer in USS Hayler (DD-997), two tours in Baltic Sea and one tour in North Sea tracking Soviet submarines during Cold War era.

Stan L. Warrick is a 1977 graduate of the U.S. Military Academy (West Point) and served 20 years in the military before retiring in 1997. He is a Gulf War Veteran and served 9 of 20 years overseas.

Edward Ward served with the U.S. Army in Germany and Vietnam from 1968-1969.

Raymond Weber, U.S. Army, 1970-1972; he used the GI bill to pay for his law school education.

Judge Billy Roy Wilson, Lieutenant, Junior Grade, U.S. Navy, 1966-1970, Vietnam Veteran.

Philip M. Wilson, U.S. Army Reserves, 28 years.

John C. Wisner, III, U.S. Marine Corps, 1972-1976.

Daniel H. Woods, First Lieutenant, U.S. Army, 19491954. Active duty during Korean War, 1950-1952, serving as Company Commander, Company B, 10th Medium Tank Battallion, 5th Armored Division. Also on active duty, served as defense counsel for the Division General Court.

Judge Wm. Randal Wright, U.S. Army National Guard JAG Corps, 1972-1981.

Steven S. Zega, Colonel, Arkansas Army National Guard.

He is a Judge Advocate (JAG), and the State Military Judge for Arkansas. ■

Kit Williams, Lieutenant, U.S. Army, 1971-1973; he used the GI bill to pay for his law school education.

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Events at the Pentagon on September 11, 2001

By David Dero Phillips

U.S. Army Military Police Corps, 1984-2005 David Dero Phillips, Deputy City Attorney for the City of Springdale, was at the Pentagon in the Budget Integration Office, 3E479, on September 11, 2001, when his office was destroyed in the terrorist attack. He was standing approximately 20 feet from the path of the airliner when it hit. He served in the U.S. Army Military Police Corps from 1984-2005.

Below are photos of the Pentagon and David’s office after the attack.

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S

eptember 11, 2001, began as a fine day for me. The sun was out and the temperature was about perfect. I went to the slug line for my neighborhood, but did not get a ride. So I caught the next bus that passed. Two friends of mine were sitting in the back of the bus. I sat beside them and we conversed all the way in to the Pentagon. When I got to our office area, I saw Wallace Hogan, the executive officer to our general, speeding down the hallway, presumably getting something coordinated. Nothing particularly remarkable happened until nearly an hour later.

The members of DAMO-ZR (the designation of our pentagon office; DA= Department of the Army, MO = Operations, ZR = Special Staff ) who were present for duty on September 11, 2001, gathered in the conference room, which was on the north side of office suite 3E479, to watch a CNN account of the terrorist attack on the World Trade Center. Our office was located on the outermost ring of the pentagon. We were on the third floor of the “E” ring, or 5th ring from the center of the building. We all gathered in silence to observe the eerie sight of the twin towers standing with flames shooting out of gaping holes. After observing the television images for a few minutes, Colonel Palmatier, our section chief, directed that a meeting scheduled for a few minutes later go ahead and convene as everyone was already present.

I went back to my cubicle, located nearest the door on the window side of the suite, and worked on some correspondence and a financial report. I sat down at my cubicle and began talking to David Richardson. I was facing the door, away from the windows. David Richardson was facing the windows. I was not specifically aware of the exact time of impact, but I had just stood up and was holding some budget reports.

My first conscious thought at the time of impact was that the entire office area had turned bright vivid yellow. I instantly became aware of a tremendous noise and an extreme physical shock. It felt as though someone had lifted the entire building up several feet and dropped it. At that instant I was profoundly confused and not certain of what would account for these stimuli. Richardson shouted “Get Down!” several times. I complied just as the secondary explosions took place. I simultaneously released the reports I was holding and dropped to the floor beside Richardson. He, without hesitation or fear, threw himself on top of me in a self-sacrificial manner. Had the windows not been coated with Mylar, he certainly would have endured physical harm or death as a result of this action. In a day

David D. Phillips was born and raised in Springdale, Arkansas. He graduated from Springdale High School and was commissioned as a Military Police Officer from the Reserve Officers Training Corps at the University of Arkansas. Following the military, he attended the University of Arkansas, Fayetteville, School of Law where he was awarded his Juris Doctorate Degree.

From 2008 until 2013, he has served in the Arkansas Judicial District 19East Prosecuting Attorney’s Office as a Deputy Prosecutor handling felony and misdemeanor criminal cases, asset forfeitures, and civil involuntary commitments. He also advised the Carroll County Judge in County governmental matters.

He now prosecutes misdemeanor criminal and ordinance cases in Springdale District Court as a Deputy City Attorney for the City of Springdale.

David is a certified law enforcement instructor.

David served in the U.S. Army, Europe in Germany, at the U.S. Army Military Police School at Fort McClellan, Alabama, and in the U. S. Army, South, in the Panama Canal Zone. He earned a Master of Business Administration Degree from the Syracuse University Army Comptrollership Program and subsequently was assigned to the 4th Infantry Division, then the First Cavalry Division, where he was deployed to Bosnia as Provost Marshal of the Stabilization Force in 1999. He later served in the Office of the Deputy Chief of Staff for Operations and Plans at the Pentagon. His final assignment in the U.S. Army was as the Deputy Provost Marshal for the North Atlantic Treaty Organization at Mons, Belgium.

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

21

Top: Headstone for Wallace Cole Hogan Jr. (pictured right), fellow soldier who was killed in the attack.

Below: David (on the right) and a security officer carrying an injured woman out of the Pentagon immediately following the attack.

full of individual heroic acts, this to me was the most selfless.

At the moment that the explosion and concussion was at its peak, I felt completely consumed by a sensation I had not previously encountered. I could easily spend considerable time trying to describe the sensation. But I have never encountered anything to relate it to. The only mental imagery I had at the time was as if I was no longer in this world and had no care or concern, no pain, no stress of any kind.

The best word to describe the feeling I had 22

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would be “peace�—a pure peace not of this world. It was as though the hand of the Lord had wrapped around me and was protecting me. It lasted for just an instant.

We immediately got up once the blast was over. I looked to see a flaming object penetrating the window near another cubicle. The flame was a persistent yellow similar to that when jet fuel is burned in the open. The fire alarms did not activate immediately, but did finally come on. Smoke began to fill the office area. The sprinklers did not activate. Various people were shout-

ing the order to evacuate. I retrieved my cell phone, and joined Victor Badami, who had remained back to ensure the office area was empty.

MAJ Badami and I turned right outside the office door. I later learned that the other members of our office went left, which took them over the portion of the building that collapsed. But that corridor held until they all safely passed over it. I initially followed Mr. Albert Creasy, who seemed to have perfect knowledge of what he was doing as he was the only person in our office who read the 70s-vintage policy on disasters, but lost track of him in the smoke. Someone opened a door to the outside toward the center of the building. Intense heat from yellow-white flames instantly filled the corridor. I fell in alongside General Webster, who was walking in complete composure toward the stairs near the office. When I got to the stairs, I had lost track of General Webster. I went down the staircase to the ground floor. Smoke was becoming very heavy and I soon regretted waiting to retrieve my cell phone, fearing that the delay may have cost me my life. Corridors I had passed hundreds of times were now unrecognizable in the smoke. Once I cleared the stairs, I was near a doorway to the helipad which was ordinarily chained and locked by a padlock that looked as though it dated back to World War II. When I had first seen those locks before, I was convinced no keys existed. The doors were knocked out of the

David’s current co-workers: Sarah Sparkman, Deputy City Attorney; Taylor Samples, Senior Deputy City Attorney; Ernest B. Cate, City Attorney; and David D. Phillips, Deputy City Attorney.

frames, either from the blast or from someone with heavy equipment, and the way out was clear. I exited the building and saw daylight. That was the first moment I began to believe I was not going to die.

I emerged in a debris field near the flames at the point of impact, though it was not at the time clear to me exactly what had happened. I knew an explosion accounted for this, but it was not until I momentarily looked around that I understood what had happened. From the debris scattered in a radial path around the blast area, it was obvious that an airliner had crashed into our building. I had worked aircraft crash scenes before and recognized some of the parts unique to aircraft. I also noticed a large piece of debris had been blown into the windshield of a passing car parked on the highway. The car was stopped on the road and unoccupied, the driver no doubt off somewhere traumatized.

Vic Badami emerged from the building at about the same location and time as I did.

For a brief moment, no one else came to our immediate area. I noticed some medical personnel treating an injured person near Highway 27. After what seemed like minutes, but was probably only a few seconds, some walking injured began to appear from the impact hole in the building.

The first person I saw was a special forces lieutenant colonel (name unknown) who had soot over his entire body, half of his hair was singed off, and his right arm had

third degree burns up to his shoulder. He was bleeding, but not profusely. As he was ambulatory, I asked if he could walk to the medic near the highway. He attempted to go back into the building, at which time I restrained him and pointed to the firemen just then entering the building. I told him they would care for the others, but he had his own problems to deal with. He walked to the aid point. The next person I noted to emerge from the building was a security officer who was single-handedly carrying an injured woman from the building. She was immobile, and had insulation material in her hair and on her clothes. He had obviously been carrying her for some distance so I offered to help him carry her the remainder of the way to a gathering point. He nodded, so I initially sought to take her from him, but he would not let go. So we both carried her to a safe location. Medics then placed her on a gurney and further evacuated her. I was unaware at the time, but an ABC News camera filmed us carrying the lady out of the building. I was also unaware that I had reentered the pentagon through the point of impact until I saw a copy of the newscast years later.

The day after, I learned that Major Wallace Cole Hogan, the fellow soldier I had seen just minutes before the attack, had died in the inferno—he and 188 others from the pentagon and the aircraft that crashed into it.

A few weeks after the disaster, Vic Badami

and I were allowed to make one final visit to our old office before the entire wing was demolished due to instability. I had hoped to find my dog tags that I left in my backpack which I had abandoned in order to deal with the crisis. When we entered our old office, we were both astonished at the degree of destruction. The collapsed portion tore through our office. The remaining areas were nothing more than soot and ash. I went to the spot where I remembered throwing down my pack and kicked around through the ashes, which were about five inches deep and uniformly spread around the office. After looking for about 20 minutes, I found my dog tags, burnt and deteriorating. I put them in my pocket. They were a chilling reminder of what could have happened. ď Ž

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Military Justice in the Arkansas National Guard

By Steven S. Zega “Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.” - George Washington “The consummate leader cultivates the moral law, and strictly adheres to method and discipline; thus it is in his power to control success.” – Sun Tzu

G

Steven S. Zega is a Colonel in the Arkansas Army National Guard. He is a Judge Advocate and the State Military Judge for Arkansas. He is also an attorney with Crouch, Harwell, Fryar & Ferner in Springdale.

24

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eneral Washington and General Sun both recognized one important bedrock of military success: military discipline.

When contemplating the meaning and effect of “discipline” in the context of the armed forces, we often, rightly, think of a superior commissioned or noncommissioned officer giving orders to his or her subordinates, and those subordinates carrying out those orders. There is much more to it, of course, and many military leaders and civilian observers have written libraries’ worth of good material on discipline in the military and its impact on success. This article, however, will focus on one narrow aspect of that discipline with emphasis on one factional component of the American military organization: military justice in the Arkansas National Guard.

To begin, it would probably be wise to define our terms. The Arkansas National Guard is the legally organized,1 federally recognized2 militia of the state of Arkansas. Its commander-in-chief is the governor of Arkansas,3 unless mobilized for federal service, in which case, its commander-in-chief is the president of the United States.4 The National Guard consists of two distinct branches of military service—the Air National Guard and the Army National Guard.5 “Military justice” is more loosely defined, but it basically means the application of punitive articles of a military code to members of the armed forces. In the Arkansas National Guard, that military code is the Military Code of Arkansas (“MCA”).6 It is also useful to understand a few more fundamentals of military law. First, military punitive articles—those provisions of the law that mandate or prohibit acts on the part of soldiers and airmen—fall generally into two categories. The first category includes those offenses that every criminal practitioner will easily recognize, for example: murder,7 larceny8 or theft,9 and drunk driving.10 Then there are the offenses that are unique to the military—things that would get a person in trouble at work, up to and including getting fired—but that could land the offender in jail11 in the armed services, and with a

punitive discharge. Examples include absence without leave,12 malingering (faking illness or injury or intentionally injuring oneself to get out of duty),13 and failure to obey a lawful order or regulation.14 The thing to remember with the military-only offenses is that these statutes are designed, specifically, to maintain the good order, morale and discipline unique and necessary to the armed forces. Some of these offenses are aimed at maintaining the unique culture of the military that compels respect for chain of command and rank (e.g., insubordination toward warrant, noncommissioned or petty officer15), and some are aimed at the imperative for soldiers and airmen to use lethal force upon the enemy, and in so doing, risk their own lives (e.g., desertion16).

For the accused (synonymous with “defendant” in civilian criminal practice) who pleads or is found guilty, punishment comes in various “elements”—that is, those individual aspects of the sanction that the law imposes as a result of conviction. Those elements are: confinement or incarceration (or in the relatively rare military case, death), a punitive discharge, a fine,17 forfeiture of all or part of pay and allowances,18 reduction in rank to the lowest grade for an enlisted accused, and a reprimand. For an accused convicted of a sexual offense,19 registration as a sex offender may also be required.20 Understanding the elements of punishment in the military justice context is important because when an accused makes a pretrial agreement (plea bargain) with a court-martial convening authority, the authority acts on each element of the sentence and cannot make any element harsher than that agreed to with the accused. In other words, a convening authority might agree, in a larceny case, to a five-year cap on confinement and to limit the punitive discharge to a bad-conduct discharge. If the court-martial sentences the accused to 10 years and a dishonorable discharge, the convening authority is obligated to limit confinement to five years and to limit the character of discharge to a bad-conduct discharge because of the plea agreement.

A convening authority is that person in the chain of command legally authorized to convene or call for a court-martial. The convening authority does more than order a courtmartial, however.21 The convening authority also personally selects the panel (jury) members,22 makes a plea deal with the accused (if the accused is open to pleading guilty),23 and takes any post-trial action on specifications to

which the accused pleads or is found guilty.24 In the MCA, the governor and the adjutant general (“TAG”25) may convene any type of court-martial, general, special or summary.26 Colonels (officer grade 6–“O6”) who are commanders of posts, garrisons, regiments, airfields, wings, brigades and similar-sized units may convene special and summary courtsmartial;27 lieutenant colonels (O5s) who are commanders of battalions and similar-sized units may convene summary courts-martial.28 In Arkansas, however, TAG must approve any execution of a sentence that includes confinement.29 General court-martial convening authorities are also the lowest-ranking legal authorities with the power to approve immunity agreements for witnesses.30 While much of this discussion has focused on courts-martial, it is critical to know that most military justice issues are handled through nonjudicial punishment, colloquially referred to as an Article 15,31 or in the Navy and Coast Guard, a Captain’s Mast. In the Arkansas Guard, we call nonjudicial punishment a Section 59.32 The use of nonjudicial punishment is designed with the following objectives in mind: resolution of minor offenses for which nonpunitive measures would be inadequate or inappropriate; prompt resolution of those offenses; preserving the servicemember’s record without the stigma of a court-martial conviction; and correction, education and reform of servicemembers for whom less strict measures would be ineffective.33 Although the law expressly provides that nonjudicial

punishment for an offense is not a conviction in terms of double-jeopardy,34 as a practical matter, a commander almost never seeks a court-martial for offenses for which he or she has imposed nonjudicial punishment. Like courts-martial sentences, nonjudicial punishment “elements” vary by the duty position and rank of the imposing commander and by the rank of the accused. In general, for an enlisted accused, an active duty commander, upon finding an accused guilty of the misconduct (and the commander must conduct a fact-finding hearing to determine culpability), he or she may impose any of the following: (1) correctional custody; (2) confinement on bread and water35 (limited to a PFC or below embarked on a vessel); (3) restriction to specified limits; (4) arrest in quarters (similar to house arrest—limited to commissioned officers); (5) extra duty; (6) reduction in rank; (7) forfeiture of pay (but not allowances) and (8) admonition or reprimand.36 The Guard commander has similar tools at his or her disposal: (1) withholding of privileges; (2) restriction to specified limits with or without duty; (3) extra duty; (4) reduction in rank; (5) fine or forfeiture of pay; and (6) admonition or reprimand.37 The active-duty commander is limited to one type of liberty deprivation (correctional custody, restriction, arrest in quarters or confinement); he or she is authorized to combine all other types of punishment.38 The Guard commander can only pick two of the five types of punishment other than reprimand or admonishment.39

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One important cultural difference in the imposition of nonjudicial punishment is evident as between the active components and the Guard: the Guard often relies upon reduction in rank as its “go-to” punishment in the nonjudicial context, as commanders perceive it as the only effective way to get an offender’s attention. In the Guard, a traditional soldier or airman drills one weekend a month and attends annual training for 15 days per year. Unless the unit is in the field, the Guard does not typically provide accommodations at training, and when it does provide accommodations, all soldiers or airmen use them, so restricting a servicemember provides little punishment.

Also, for all intents and purposes, extra duty is impractical; the unit is either in the field, so there is no opportunity for “extra” duty, or the unit is in garrison (post), and to impose extra duty on a misbehaving soldier or airman means imposing extra duty on his or her supervisor as well. Financial penalties are limited by regulation to one month,40 effectively limiting the pain a soldier or airman feels to 30 days. That leaves reduction in rank. The issue with reducing a soldier’s or airman’s rank, however, is that it harms the servicemember’s career advancement for the balance of his or her time in service. A field-grade commander (O4 or above), for example, is authorized to reduce a specialist (Army) or senior airman (Air Force) (both E4s) all the way to E1— private or airman basic. It takes months, and in some cases, years, to advance in rank and thus recover what the servicemember lost.

Pay, allowances, opportunities for better and more prestigious duty assignments and retired pay all depend on rank in the military.

With that in mind, active duty commanders are more likely than their Guard counterparts to impose restrictions (with or without extra duty), financial penalties, and reprimands as opposed to reductions in rank41 upon the members of their respective commands when administering nonjudicial punishment.

Having offered a very general survey of the constitutional, statutory, and regulatory structure of military justice in the National Guard, it is time to discuss courts-martial as they have actually been happening in the Arkansas National Guard. Anecdotal, undocumented evidence suggests that between the end of World War I and 2013, the Arkansas Guard convened one court-martial,42 during the Persian Gulf War (1990–1991) for a soldier who refused to report to his unit for mobilization.

The role of the Guard changed substantially 26

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in the post-9/11 world, moving from America’s strategic reserve (a force designed primarily to defend the homeland and mobilized for overseas service only in the event of allout war) to its operational reserve (deploying overseas with moderately predictable frequency). Guard commanders, internalizing the lessons from Operations Enduring Freedom, Iraqi Freedom and New Dawn, pushed for a more robust military justice system than they had before multiple deployments. As a result, the Guard decided to send me to the 55th Military Judges’ Course,43 a three-week intensive school dedicated to substantive and procedural military law from the military judge’s perspective. In the Fall of 2013, then-Governor of Arkansas Mike Beebe convened the first General Court-Martial in the Arkansas National Guard in almost 100 years. The case involved a male Second Lieutenant accused of sexually assaulting a female colleague. Since then, the Arkansas Guard has convened and seen to a conclusion seven more courts-martial. All of these cases have involved alleged sexual misconduct44 of one kind or another, ranging from video voyeurism to completed sexual assault. Each of these cases, so far, has been resolved by a plea agreement.

An experienced civilian criminal law practitioner could walk into a court-martial and not be completely disoriented. Many concepts between civilian and military courts are similar, if not identical. The Military Rules of Evidence (M.R.E.) are patterned after the Federal Rules of Evidence, with some modifications adapted for the facts of military life and missions. Hearsay is defined45 in the same way and prohibited46 in the same way, with the same exceptions (for the most part), in a military court as it is in a civilian court. Military advocates and judges wrestle with Rule 404(b), just as their civilian counterparts do.

Examination of witnesses takes place in much the same way in both courts, with direct examination first (with the prohibition against leading questions)47 and cross-examination following. There are evidentiary privileges.48 The prosecution’s burden of proof is the same—beyond a reasonable doubt for each element of each offense charged.49 However, there are aspects of court-martial practice that could confuse a novice. For example, the plea process in a military case where there is an agreement is detailed and painstaking, relative to a civilian court. In civilian courts, while a judge during a plea hearing may inquire as to the defendant’s knowledge of his or her rights

to a jury trial, to remain silent, to put the prosecution to proof, to confront the witnesses for the prosecution, to use compulsory court process to summon witnesses to trial, and to an appeal, and as to the defendant’s mental state at the time of the plea, that entire process is likely to take minutes at most. Then the civilian judge will ascertain the charge(s) to which the defendant is pleading guilty, make sure the defendant knows the sentencing range, and then secure an on-the-record factual basis for the plea. During the court-martial, the judge ascertains that the accused understands his or her right to counsel, gets a recitation from the accused that he or she wants CPT Doe (or Ms. Roe) to be his or her lawyer, and then reviews forum (panel or judge alone) rights with the accused, explaining in detail how many votes would be necessary to convict.50 Then, instead of a factual basis for the guilty plea, a military judge conducts what is known as a providence inquiry,51 where the judge lays out and defines for the accused each and every element of the specifications52 to which the accused is pleading guilty. This process can (and often does) take hours. However, it is designed to protect the accused, in the unique circumstances of the military, when it is likely that the convening authority, the judge and counsel in the room all outrank him. To counterbalance any coercion in the process, the military judge goes far beyond his or her civilian counterparts to ensure the accused is treated fairly.

All that said, civilian attorneys should find practicing in Arkansas courts-martial professionally rewarding. For those making their first foray into the military justice practice, keeping military counsel on the case is advisable, as is close coordination with that counsel. The talented pool of military defense counsel in the Arkansas Guard—each an accomplished civilian advocate in his or her own right—have specific training in those areas of military justice that might trip up a first-time civilian lawyer in court-martial. They also know the “art” side of the practice—how to argue things to other members of the military (who, after all, will make up the finders of fact in a court-martial, no matter the forum) in an effective way. Once mastered, however, the procedure of military practice should become as familiar as civilian procedure. The clients defense counsel represent in these courts are all military members, and that fact presents its own unique challenges and rewards. The Arkansas National Guard’s military justice system presents those opportunities.

Endnotes: 1. Ark. Const., art. 11, § 1.

2. 32 U.S.C. § 101.

3. Ark. Const., art. 11, § 4. A reader finding the Constitutional provision in question will immediately notice that the sentence, “The Governor shall be the commander-in-chief of the Militia,” does not appear in Article 11, and to the author’s knowledge, it does not appear anywhere else in the Arkansas Constitution. For the body of law that supports the idea that the Governor is the civilian commander of the Arkansas National Guard, see United States v. Boyster, 436 F.3d 986 (8th Cir. 2006), and Ark. Code Ann. §§ 12-61-102 and -111.

4. U.S. Const., art. II, § 2.

5. 32 U.S.C. § 101 (3).

6. Ark. Code Ann. §§ 12-64-101–848.

The current or former military practitioner will recognize that the MCA shares much in common with the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 801–946, and there will be comparative notes between the two sets of statutes in this article.

7. Art. 118, UCMJ; 10 U.S.C. § 918.

8. Art. 121, UCMJ; 10 U.S.C. § 921.

9. Actually called “Stealing Property” in the title of the statute—§ 160, MCA; Ark. Code Ann. § 12-64-842.

10. Art. 111, UCMJ; 10 U.S.C. § 911; § 152, MCA; Ark. Code Ann. § 12-64-834.

11. Or, in some cases, on federal death row.

See, e.g., Forcing a Safeguard, Art. 102, UCMJ; 10 U.S.C. § 902.

12. UCMJ Art. 86; 10 U.S.C. § 886; MCA § 129; Ark. Code Ann. § 12-64-810.

13. Art. 115, UCMJ; 10 U.S.C. § 915; MCA § 155; Ark. Code Ann. § 12-64-837.

14. Art. 92, UCMJ; 10 U.S.C. § 892; MCA § 135; Ark. Code Ann. § 12-64-817.

15. Art. 91, UCMJ; 10 U.S.C. § 891; MCA § 134; Ark. Code Ann. § 12-64-816.

16. Art. 85, UCMJ; 10 U.S.C. § 885; MCA § 128; Ark. Code Ann. § 12-64-809.

17. This is one aspect in which the UCMJ and the MCA differ. A “fine” in UCMJ terms is usually imposed upon a military member when the member realized pecuniary gain from his or her crime. Rule for Courts-Martial (R.C.M.) 1003 (a)(3). In the Arkansas National Guard, a fine may be (and commonly is) ordered in lieu of forfeiture of pay and allowances, in other words, not tied to any monetary gain the accused may have realized in the case.

18. What military remuneration is “pay” and what is an “allowance” can be confusing, even to a 30+ year veteran. In the simplest terms, military “pay” is taxable; an “allowance” is not.

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19. E.g., Art. 120 of the UCMJ—Rape, or Sexual Misconduct, Ark. Code Ann. § 1264-845.

20. Department of Defense Instruction 1325.07, Encl. 2, Appx. 4 (3/11/2013); Ark. Code Ann. §§ 12-12-903 and -906.

21. General courts-martial convening authorities also get a lot of administrative powers, at least in the Army. Among those powers are the approval of bars to re-enlistment for soldiers with more than 10 years’ service, AR 601-280, ¶ K-5b; and approval of separation of soldiers and the classification of a separated soldier’s character of service. AR 135-178.

22. R.C.M. 503 (a)(1).

23. R.C.M. 705. This rule is also a good survey of what is and is not permissible in terms of a plea agreement in the military.

24. R.C.M. 1105–1107.

25. TAG in Arkansas is a Major General (two-star) and is the top administrative officer of the Arkansas National Guard. Ark. Code Ann. §§ 12-61-105 and -106. The current TAG is MG Mark H. Berry, a federally recognized Air Force General. Broadly speaking, two-star generals and admirals in the active components are also authorized to convene any type of court-martial. Art. 22, UCMJ; 10 U.S.C. § 822.

26. Ark. Code Ann. § 12-64-406(a).

27. Ark. Code Ann. § 12-64-406(b).

28. Ark. Code Ann. § 12-64-406(c).

29. Arkansas National Guard Regulation (NGAR) 27-10, ¶ 7-21. Although not specified in the regulation, presumably the governor, by virtue of being the Commander in Chief of the Guard, could also approve execution of a confinement sentence.

30. R.C.M. 704 (c).

31. 10 U.S.C. § 815.

32. Ark. Code Ann. §§ 12-64-301–303.

33. Army Regulation (AR) 27-10 (2016), ¶ 3-2; NGAR 27-10, ¶ 6-1.

34. 10 U.S.C. § 815(f); Ark. Code Ann. § 12-64-303. However, an accused may not be punished twice under Article 15. AR 2710, ¶ 3–10.

35. The 2016 NDAA eliminates this rarelyused punishment option as of January 1, 2019.

36. 10 U.S.C. § 815.

37. NGAR 27-10, ¶ 6-3.

38. AR 27-10, ¶ 3-19b(8).

39. NGAR 27-10, ¶ 6-3.

40. Id. 41. However, suspension of a reduction in rank for a set time—essentially probation—is a possibility in both the active components

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27

State Board or DEA Licensure Issues?

Call Pharmacist/Attorney Darren O’Quinn

800-455-0581 www.DarrenOQuinn.com Representing: Doctors Pharmacists Nurses Healthcare Providers The Law Offices of Darren O’Quinn 36 Rahling Circle, Suite 4 Little Rock, Arkansas 72223 28

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and the Guard. 10 U.S.C. §815(f); AR 27-10, ¶ 3-23a(3); NGAR 27-10 ¶ 6-1.

42. For purposes of this article, I am referring only to special courts-martial empowered to adjudge a bad conduct discharge and general courts-martial. The other type, a summary court-martial (SCM), may be convened at the battalion or squadron level. Ark. Code Ann. § 12-64-406(c)(1). SCMs are convened without a judge and without counsel (of right) for the accused and without counsel for the prosecution; as such, judgments of guilt from these courts are not “convictions” in the constitutional sense. Middendorf v. Henry, 425 U.S. 25 (1976); Art. 20, UCMJ; 10 U.S.C. § 820.

43. Held annually in April and May at the Army Judge Advocate General’s Legal Center and School, collocated with the University of Virginia Law School in Charlottesville. The 55th MJC took place in the last two weeks of April and first week of May 2012.

44. In light of mounting pressure in the last decade or so over the sexual assault crisis in the military, the Department of Defense, with Congressional approval, established the Special Victim Counsel (SVC) program. SVCs are qualified and trained judge advocates who represent victims of alleged sexual offenses in military courts and administrative proceedings.

45. M.R.E. 801(c).

46. M.R.E. 802.

47. M.R.E. 611.

48. M.R.E. 501–514. There are some privileges that are unique to the military, e.g., those dealing with classified evidence. See M.R.E. 505.

49. Art. 51, UCMJ; 10 U.S.C. § 851(c); Ark. Code Ann. § 12-64-522(c).

50. Except in capital cases (which are legally impossible to be brought under the MCA), verdicts in military cases do not have to be unanimous. Two-thirds of the members on a panel voting to convict or acquit results in a finding on that specification. R.C.M. 921.

51. In order to be legally proper, an accused’s guilty plea to a court-martial must be provident. Art. 45, UCMJ, 10 U.S.C. § 845.

“Providence” is not defined by the statute.

Case law defines a provident plea as a knowing, voluntary and informed act, free from coercion or command influence. United States v. Hunter, 28 C.M.R. 880, 883 (U.S.A.F. Board of Review, 1959).

52. In military practice, a “charge” encompasses the statute the accused is alleged to have violated; “specifications” are the individual instances of violations of that statute. 

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Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

29

How Effective is Arkansas’ Program that Conditionally Releases Criminal Defendants Judged Not Guilty by Reason of Mental Disease or Defect?

1

Editor’s Note: This article provides a statistical analysis of the effectiveness of the Act 911 Conditional Release Program in Arkansas. A companion article on page 36 analyzes the NGRI process from the perspective of a single criminal defendant.

30

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Authors: • Samuel J. House, MD, Forensic Section Chief, Assistant Clinical Professor, Department of Psychiatry, University of Arkansas for Medical Sciences/Arkansas State Hospital • Tiffany A. Howell, PhD, Clinical Psychologist, Assistant Professor, Department of Psychiatry, University of Arkansas for Medical Sciences/Arkansas Children’s Hospital • Jessica Howdeshell, LCSW, Licensed Clinical Social Worker, Department of Social Work, Arkansas State Hospital, Arkansas State Division of Behavioral Health Services • Carrie Jones, LCSW, Director of Social Work, Department of Social Work, Arkansas State Hospital, Arkansas State Division of Behavioral Health Services • Rebecca B. Spohn, PhD, Forensic Services Program Director, Assistant Professor, Department of Psychiatry, University of Arkansas for Medical Sciences/Arkansas State Hospital Introduction Conditional release programs are supervised systems designed to assist individuals who have been found not guilty by reason of mental disease or defect (NGRI) successfully return to society. They have been widely used for criminal offenders with mental illness across the United States, although the conditions and length of program vary by jurisdiction.2 The Conditional Release Program in Arkansas, locally known as the “911 Program” in reference to Act 911 of 1989, initiated changes in the procedures relating to the defense, acquittal, and commitment of individuals with mental disease or defect.3 If acquitted of a criminal charge due to mental disease or defect, NGRI acquittees are committed to the custody of the Department of Human Services for a period of up to 30 days so they can be examined by a psychiatrist or licensed psychologist. The purpose of the evaluation is to determine whether the NGRI acquittee’s release would create “a substantial risk of bodily injury to another person or serious damage to property of another person due to a present mental disease or defect.”4 Following the evaluation period, an acquittee deemed to be a risk may be placed in the Conditional Release Program. The acquittee is not, however, immediately released from the hospital once placed in this program. Before release is possible, a qualified mental-health-care provider must determine that the acquittee has “recovered from his or her mental disease or defect to such an extent that his or her release or his or her conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another person.”5 If this occurs, the treating physician files an application for the conditional release of the NGRI acquittee with the circuit court.6 If the court grants the conditional release, then the acquittee is actively monitored for up to five years, reporting to social workers from the Arkansas State Hospital who assist with post-discharge treatment compliance, maintaining safe behaviors in the community, and refraining from further illegal activity.7 Examples of conditions of release include: • • • • • •

abstinence from drug and alcohol use compliance with random drug screening attending treatment compliance with medications reporting to a conditional release monitor, and submission of a current address.8

Under the current law, the court can revoke or extend a client’s release if one or more of the conditions are not met9 if the state can show a violation of conditions by a preponderance of the evidence.10 While Arkansas’ program has been in place for nearly 30 years, a rigorous evaluation of the program’s success has yet to be performed.

Research conducted on similar programs in other states has found varying degrees of success with their conditional release programs—including trends or indicators that an NGRI acquittee will or will not successfully complete the conditional release. These studies have found several factors that are likely related to determining whether the conditional release will be completed or will fail: gender (possibly),11 miVol. 53 No. 4/Fall 2018 The Arkansas Lawyer

31

nority status,12 prior criminal history,13 substance abuse,14 and release to less structured settings.15 Given the lack of research data regarding the effect of Arkansas’ conditional release program, and the recently renewed interest in this area of research, investigators at the Arkansas State Hospital evaluated various factors of NGRI acquittees that may contribute to successful completion, revocation, or extension of conditional release. This research could assist mental-health professionals when determining if an NGRI acquittee is ready to be conditionally released, identify risk-factors that make a patient high or low risk for revocation, and evaluate the effectiveness of the conditional release program in Arkansas.

Methods This study was a retrospective review of an electronic database of NGRI acquittees placed on conditional release in Arkansas. Conditional release reports for these individuals were also reviewed. All records were maintained as part of standard monitoring of conditionally released acquittees and were maintained by the Conditional Release Office at the Arkansas State Hospital.16 Investigators used the database maintained for the Conditional Release office for NGRI acquittees on conditional release between September 2007 and September 2017, which returned data on 585 acquittees. Of that number, 394 were currently under their original conditional release orders and did not have an opportunity to successfully complete the program. For example, a potential subject with an original court order dated 2014 would not have the opportunity to finish a five-year program and was therefore excluded from the study.

After the research parameters were applied, 191 people were included in the study and 394 were excluded. All the participants were older than 18. Successful completion was defined as finishing the conditional release program within five years of the original commitment. Failure was defined as having the original conditional release revoked or extended, and/or death (N = 3).

Because there have been no published studies on Arkansas’ conditional release program, this study is considered exploratory in nature. As such, the statistical analyses used begin somewhat simple and increase in level of complexity dependent upon initial 32

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findings. The authors here omit a detailed explanation of the statistical analyses, but the analyses will be made available to any interested reader upon request. The variables investigated included age at conditional release, gender, race, provider of original placement, original placement county, original placement city, original placement catchment area, most recent provider, placement type, current placement county, currently on revocation, history of revocation, number of times revoked, number of hospital readmissions post-conditional release, currently eloped, number of elopements, violent charge, sexual charge, number of charges, primary diagnosis, and substance use disorder diagnosis. If a statistically significant relationship was found between two or more variables, further analyses were performed.

Results Of the 191 people analyzed, most were men (N = 139, 72.8%). Slightly more than half were Caucasian (N = 104, 54.5%) with a Psychotic Disorder diagnosis (N= 148, 77.5%). Tables 1, 2, and 3 summarize frequencies and descriptive statistics of variables of interest. Regarding the types of charges received by the study population, 39 NGRI acquittees (20.4%) were acquitted of violent charges, defined as murder, non-negligent manslaughter, forcible rape, robbery, and aggravated assault.17 Five people (2.62%) were acquitted of sexual offenses, which this analysis defined as rape or sexual assault. The vast majority of subjects were acquitted of Offenses Against Persons and Offenses Against Property (53.9%, N= 103; and 23%, N=44, respectively). Table 4 summarizes the types of charges received by the study population as defined by the Arkansas Code.

Regarding completion of the Conditional Release Program, 139 acquittees completed their conditional releases within five years of their original orders without revocation or extension, yielding a 72.8% success rate. A total of 31 NGRI acquittees (16.2%) received extensions, and 21 (11.0%) were revoked. Three deaths were reported, which was 3.1% of the participants.

The rate of an NGRI acquittee completing the program within five years decreases from 76.5% successful completion with no re-admissions (N=104) to just 10.5% successful completion with one or more re-admissions (N=14).

Table 1. Frequencies of variables of interest. n

%

Race African American

84

44

Caucasian

104

54.5

Hispanic

1

0.5

Asian

1

0.5

Gender Male

139

72.8

Female

52

27.2

Yes

4

2.1

No

187

97.9

Yes

23

12

No

168

88

Yes

8

4.2

No

183

95.8

Yes

3

1.6

No

188

98.4

Yes

39

20.4

No

152

79.6

Yes

5

2.6

No

186

97.4

Yes

31

16.2

No

160

83.8

Yes

139

72.8

No

52

27.2

Currently Revoked

History of Revocation

Currently Admitted

Currently Eloped

Violent Charge

Sexual Charge

Order Extended

Successful Completion

Applying an accepted statistical analysis called logistic regression, this study used an acquittee’s history of revocation, age at conditional release, presence of a violent charge, and number of readmissions after conditional release as independent variables; successful completion was the dependent variable.

Two significant relationships were revealed.

First, the presence of a violent charge after conditional release was negatively related to successful completion. This means persons who committed a violent offense were less

Table 2. Descriptive statistics of variables of interest.

Min

Max

Mean

Std. Dev.

18.54

66.52

39.516.

11.84

Number of Revocations

0

2

0.15

0.42

Number of Readmissions

0

9

0.89

1.41

Number of Elopements

0

2

0.12

0.37

Number of Charges

1

9

1.89

1.25

Age on Release

Table 3. Frequencies of primary diagnoses in the study sample. n

%

Psychotic Disorder

148

77.5

Bipolar Disorder

32

16.8

Depressive Disorder

3

1.6

Other Mood Disorder

3

1.6

Neurocognitive Disorder

2

1

Substance Use Disorder Only

1

0.5

Trauma-related Disorder

1

0.5

None

1

0.5

Table 4. Frequencies of types of charges received by subjects.

Charge Type

n

%

Offenses Against Person

159

44.2

Offenses Involving Family, Dependents, Etc.

23

6.39

Offenses Against Property

87

24.2

Offenses Against the Administration of Government

48

13.3

Offenses Against Public Health and Safety

41

13.3

Traffic Offense

2

0.56

360

100.0

Total

likely to complete the conditional program without a revocation or extension. Second, the number of hospital readmissions was also negatively related with successful completion; persons with higher numbers of hospitalizations following conditional release were less likely to complete their conditional releases.

Another significant relationship was found using a chi-square analysis between successful completion and discharge to rural or urban areas, as defined by the U.S. Census Bureau.18 Specifically, NGRI acquittees originally released to mostly urban environments showed a greater likelihood to successfully complete their conditional releases than those who were released to either a mostly or completely rural area. The authors caution, however, that other analyses could

not predict whether these geographical categories can predict whether a NGRI acquittee will experience success.

Discussion As we explained earlier, the authors conducted what is known as an “exploratory investigation� by reviewing a comparatively large sample of 191 participants who were conditionally released in Arkansas under Act 911. As we have also noted, 72.8% of NGRI acquittees conditionally released successfully completed the program within the five years, which is similar to the rate of completion found in a Louisiana study.19 This rate is difficult to compare to other states, like Connecticut and Oregon, because other states’ systems of conditional release vary significantly from Arkansas.20

Statistical analyses (specifically, logistic regressions) yielded two significant and predictive findings. First, the presence of a violent charge and one or more post-release hospital readmissions are significantly related to failing the conditional release program within five years. That being a violent offender predicts the failure of conditional release could be secondary to the presence of more severe illness in persons who were acquitted of a violent charge, because people with severe mental illness tend to have more difficulty complying with treatment recommendations.21 But data regarding the severity of illness for each individual at the time of discharge or revocation was not available for more thorough examination. It is also possible that NGRI acquittees of violent charges were more likely to engage in criminal recidivism. This reasoning conflicts with general prison population recidivism statistics from the U.S. Department of Justice, which has reported that prisoners released after time served for property crimes were the most likely to be rearrested, followed by drug, public order, and violent offenses.22 It is possible that offenders with mental illness have patterns of recidivism that differ from the general population, and this warrants further study.

Perhaps case managers are more likely to request revocation or rehospitalization of acquittees with histories of violent crimes for fewer or less serious infractions compared to those without violent crimes. For example, maybe a case manager is more likely to request rehospitalization or revocation for a client with an aggravated assault charge history if he or she has a positive urine drug screen. But the same case manager may be less likely to request rehospitalization or revocation under the same circumstances for a client with a criminal-mischief-charge history. Whether some inherent bias exists in the case-management process itself warrants further investigation.

The presence of a sexual charge (rape or sexual assault) did not yield a significant relationship. Because of the limited sample of participants who had these charges (only five), it is unlikely that an analysis would return a significant result. Because of the small number of rapes and sexual assaults in the study population, even the addition of a small number of other sexual crimes (like incest or indecent exposure) could significantly impact this analysis.

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The second predictive finding according to some of the analyses is that higher numbers of post-conditional release hospital readmissions predicted failure of completion of the 911 Conditional Release Program within five years of the original order. This could also be explained by one’s severity of illness. The NGRI acquittees with more severe illness, poor compliance, or both, could be more likely to be rehospitalized. Because compliance with treatment is always a condition of release, if a person’s hospitalizations are due to noncompliance, it follows that the acquittee is more likely to be revoked or extended. While the readmission variable does not include hospitalizations at other facilities, in the authors’ experience, NGRI acquittees who have been conditionally released are not likely to be accepted for admission for stabilization at community/ private facilities; instead they are more likely to be referred back to the Arkansas State Hospital. Data regarding hospitalization rates at other facilities for acquittees who are on conditional release were not available for examination.

The authors spent a significant amount of time and effort exploring possible relationships between success or failure and patient placement at the time of conditional release.

Not many significant results were found, which could be due to multiple reasons. First, the population size was limited considering the number of variables investigated. Secondly, when an acquittee is discharged on conditional release, these conditions can be modified if the NGRI acquittee wants or needs to move locations, making it more difficult to predict success or failure based solely on original placement. Finally, there are 13 catchment areas in Arkansas, so the high number of placement options could also obscure significant findings when analyzing data based on that variable rather than rural versus urban placement. To that end, a chi-square analysis showed that a mostly-urban placement was correlated with successful completion, while a rural or mostly-rural placement was not correlated with successful completion.

This could be due to greater availability of resources when acquittees are having difficulty following conditions in mostly-urban areas compared to acquittees in rural areas. Further investigation is needed to determine if placement influences successful completion.

Our study has some limitations, including the possibility that various demographic 34

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groups were over represented—including (1) males, (2) African-Americans (male or female), and (3) persons with psychotic disorders. Given the authors’ collective professional experience, this over representation appears similar to the demographics of people who are more likely to be acquitted and committed to the Arkansas State Hospital for evaluation and potential placement in the Conditional Release Program. A separate study is now underway to investigate the demographics of those persons acquitted due to mental disease or defect in the state of Arkansas to clarify this anectodal similarity. Also, the authors note that the definition of “sexual charge” was limited to include only rape and sexual assault charges. A future study could expand the sex-crime parameter to include the other sex crimes, like sexual indecency with a child, indecent exposure, or incest. Additionally, this study’s ability to identify significant findings in the relationship between placement and successful completion was limited because the participants were allowed to move within the conditional release system. For example, a client may be conditionally released to a rural area with limited resources but move within six months to an urban area with adequate resources and successfully complete the program. In this example, it is difficult to know if the discharge to the rural area or move to an urban area was related to successful completion.

Future studies will include analyses of subgroups of the population—particularly those with other sexual charges instead of limiting the parameter to the particular crimes of rape and sexual assault. Analyses of placement type (residential care facility, nursing home, home, etc.), and the availability of resources such as emergency rooms, crisis stabilization units, and inpatient psychiatric facilities are planned.

Conclusion Though caution is warranted for the reasons we have discussed, this study’s data reveals some good news. The success of participants in Arkansas’ conditional release program within the five years is more common than failure, and at a rate similar to Louisiana’s participants. The two factors that significantly predicted failure were acquittal of a violent charge and one or more rehospitalizations after discharge. These factors must be identified so health-care providers may more accurately assess risk of con-

ditional release and tailor treatment to the NGRI acquittee’s needs. More work needs to be done, but an important first research step has been completed regarding how successfully Act 911’s purposes are being carried out after NGRI acquittees have been diverted to the conditional release program.

Endnotes 1. Disclaimers: Data from this study were presented in poster format at the 2017 Annual Conference of the American Academy of Psychiatry and the Law. Dr. House served as a clinical investigator for Jannsen Pharmaceutica from 2015 to 2017 for a clinical trial at the University of Arkansas for Medical Sciences. However, he received no financial incentives from the company. No subjects in the current study were involved in that clinical trial. Drs. Howell and Spohn, Ms. Howdeshell, and Ms. Jones have no financial disclosures. The views expressed in this article do not necessarily reflect the official Arkansas State Division of Behavioral Health Services policy.

2. Michael J. Vitacco et al., Introduction to the Special Issue: Conditional Release, 32 Behav. Sci. Law. 553 (2014).

3. Ark. Code Ann. § 5-2-315 (2017).

4. Ark. Code Ann. § 5-2-314 (2017).

5. Id. 6. Id. 7. Id. 8. Id. 9. Ark. Code Ann. § 5-2-316 (2017).

10. Ark. Code Ann. § 5-2-314 (2017).

11. Howard V. Zonana et al., Part II: Sex Differences in Persons Found Not Guilty by Reason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 Bull.

Am. Acad. Psychiatry Law. 129 (1990); Ann Seig et al., A Comparison of Female Versus Male Insanity Acquittees in Colorado, 23 Bull. Am. Acad. Psychiatry Law. 523 (1995).

12. Candice M. Monson et al., Stopping (or Slowing) the Revolving Door: Factors Related to NGRI Acquittees’ Maintenance of a Conditional Release, 25 Law Hum. Behav.

257 (2001).

13. Id. 14. Candice M. Monson et al, Stopping (or Slowing) the Revolving Door: Factors Related to NGRI Acquittees’ Maintenance of a Conditional Release, 25 Law Hum. Behav.

257 (2001); Gina M. Manguno-Mire et al., What Factors are Related to Success on

Conditional Release/Discharge? Findings from the New Orleans Forensic Aftercare Clinic: 2002-2013, 32 Behav. Sci. Law. 641 (2014).

15. David Novosad et al., Conditional Release Placements of Insanity Acquittees in Oregon: 2012-2014, 34 Behav. Sci. Law. 366 (2016).

16. Prior to examination of the records, a protocol was submitted to the Institutional Review Board at the University of Arkansas for Medical Sciences, who determined the proposal was not human research. The proposal was then submitted to the Research Committee at the Arkansas State Hospital, who approved the project.

17. U.S. Department of Justice Definition of Violent Crime, available at https://ucr. fbi.gov/crime-in-the-u.s/2010/crime-in-theu.s.-2010/violent-crime (last visited Jan. 8, 2018).

18. Michael Ratcliffe et al., Defining Rural at the U.S. Census Bureau. ACSGEO-1, U.S. Census Bureau (2016); U.S. Census Bureau County Classification Lookup Table, available at https://www.census.gov/ geo/reference/urban-rural.html (last visited Dec. 15, 2017).

19. Gina M. Manguno-Mire et al., What Factors are Related to Success on Conditional Release/Discharge? Findings from the New Orleans Forensic Aftercare Clinic: 20022013, 32 Behav. Sci. Law. 641 (2014).

20. Michael A. Norko et al., Assessing Insanity Acquittee Recidivism in Connecticut, 34 Behav. Sci. Law. 423 (2016); Oregon Psychiatric Security Review Board Fact Sheet, available at http://www.oregon.gov/prb/ Documents/PSRB%20FAQ-Snapshot%20 1-2017.pdf (last visited Jan. 8, 2018).

21. Annette Zygmunt et al., Interventions to Improve Medication Adherence in Schizophrenia, 159 Am. J. Psychiatry 1653, 1653 (2002); Rose J. Julius et al., Medication Adherence: A Review of the Literature and Implications for Clinical Practice, 15 J. Psychiatr. Pract. 34 (2009); Dawn I. Velligan et al., Strategies for Addressing Adherence Problems in Patients with Serious Persistent Mental Illness: Recommendations from the Expert Consensus Guidelines, 16 J. Psychiatr. Pract. 306 (2010).

22. Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, Bureau of Justice Statistics (2014).ď Ž

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Beware of Not Guilty

by Reason of Mental Disease or Defect

By Rusty Byrne Rusty Byrne represents NGRI individuals and has served for the past 23 years as the mental health public defender in Pulaski County.

B

eing found not guilty by reason of mental disease or defect (NGRI) or simply requesting the “Act 3” can lead to a “life sentence” or substantially more time than simply being found guilty or taking a plea. Once an Act 3 is requested, speedy trial is tolled. If found not guilty by reason of mental disease or defect, the defendant is placed in the custody of the Director of the Department of Human Services for further evaluation and treatment. If not fit to proceed, the individual can remain in the State Hospital for the rest of his or her life.

The Act 3 defendants are evaluated by psychiatrists or “certified” psychologists. Three opinions can be given: (1) no mental illness (back to face charges); (2) mental illness and not responsible (generally NGRI); or (3) not fit to proceed due to current mental illness.

The last of these three scenarios can be a huge problem. Often, defendants will spend months or years being treated in order to be restored to fitness so they are restored to face their criminal charges. Some are never

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restored. If restored, then it is back to jail and the criminal case moves forward. This could be months or years. If not restored, or a psychiatrist opines that the individual is not restorable, that individual will remain under the circuit court’s jurisdiction forever.

That means your client will likely remain in a locked facility forever (i.e. Arkansas State Hospital). It is extremely difficult, if not impossible, to place an individual in a treatment facility other than the State Hospital if he or she still has criminal charges pending.

(The Arkansas Supreme Court has held that you cannot dismiss a criminal charge while not fit.1) If a person is not fit to proceed, the defendant will remain under circuit court jurisdiction—in the State Hospital or other locked facility, if lucky enough to find one.

(There are rumors that some judges may start dismissing these cases on due process grounds—too long of a lapse of time for a fair trial. We will have to wait to see how that plays out.)

If the defendant is found NGRI this creates its own issues on how long the defendant (now respondent) can be detained.

NGRI individuals are evaluated for 30 days and committed to the custody of the Director of the Department of Human Services. The Director commits those individuals to the Arkansas State Hospital. Most (approximately 99%) individuals are evaluated and placed in the 911 program. They remain in the custody of the Arkansas State Hospital for an indefinite period of time. It is an indefinite period of time because the individual cannot be “conditionally released” until the individual is deemed to not be a danger to the person or property of others.

In order to be deemed “not a danger to the person or property of another,” an Arkansas licensed psychiatrist or a certified psychologist must issue an opinion that the individual, if released under certain conditions, would not pose a risk of danger to the person or property of others. The psychiatrist or certified psychologist must issue that opinion in the form of a “conditional release report.” A hearing is set.

At the hearing, the NGRI individual must prove by clear and convincing evidence (if the crime involved serious bodily injury to another or by a preponderance of evidence otherwise) that his or her release under the terms of that conditional release report

would not pose a risk of danger to the person or property of others. If the Court finds that the individual is not a risk of danger to the person or property of another, the Court “releases” the individual “under” the terms of the conditional release. Being “under” the terms of conditional release is much like being on probation.

Being under “conditional release” has “terms” or restrictions that the individual must follow for a five-year period. The five years starts the day the individual is “released” by the Court pursuant to the hearing. Any time spent in the custody of the Director of the Department of Human Services—the State Hospital or jail—does not count toward the five years (no credit for time served).

The typical terms of the five-year conditional release plan are: • • • •

• •

• •

a set permanent address set out in the Order; no additional crimes; take all prescribed medications, as prescribed; go to all treatment sessions—doctor, group therapy, individual therapy, AA, NA—as recommended by the treatment team; no illegal drugs; meet weekly (in person) with a 911 monitor (much like a probation officer); other terms as required by the Court; and do not pose a risk of harm to person or property of others.

If at any point any of these terms are violated, the prosecutor—at his or her discretion—can file a petition to revoke the individual. A hearing is set.

One of three things will happen at the revocation hearing. (1) The Court will find that there is not enough evidence to revoke and will return the individual to his or her residence under the same five-year plan he or she was on. (2) The Court may modify the plan to be more restrictive and/or extend the terms of the conditional release for up to another five years. (3) Or, the Court may revoke the individual.

If revoked, the individual is returned to the custody of the Director of the Department

of Human Services—Arkansas State Hospital. If revoked, any time that has been spent toward the five-year release plan is voided.

The individual is now back to where he or she started when originally placed in the 911 program (after the 30-day evaluation). Now the whole process starts over.

Virtually all individuals spend more than five years in the 911 program. At a minimum they will spend five years plus the initial 30 days for evaluation. At the maximum, they spend the rest of their lives. There is no limit on the number of times an individual can be released and revoked. There is no limit on the number of times the conditional release order can be extended. If your client fails to follow the terms or restrictions of the conditional release, he or she can remain subject to the Court’s jurisdiction indefinitely.

There are currently multiple clients (defendants/respondents) who fall within these categories. Some have been under the 911 program for over 20 years. Many are still under the program 10 years later. Several of the not-fit-to-proceed defendants have died in custody.

Some attorneys argue that they are trying to get their clients help by using the NGRI defense. There are civil commitment statutes for that that are much less restrictive.2 All of this is intended to help attorneys not fall into the trap of thinking that a request for an Act 3 or the NGRI is always the best option. There are significant consequences to proceeding down this path. It can often be the right path, but not always. So, evaluate your client’s case accordingly.

Endnotes: 1. See Thomas v. State 2014 Ark. 362; Ark. Code Ann. § 5-2-302.

2. See Ark. Code Ann. § 20-47-201.

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Patent Litigation: Could Arkansas be Home to More Suits after TC Heartland?

By Frederick H. Davis and Zachary R. Hill

This article provides a summary of the patent venue rules after the U.S. Supreme Court’s ruling in TC Heartland, explains what the newly-relevant venue defense means for Arkansas companies, and discusses venue trends around the country and in Arkansas.

Patent litigation is a legal unicorn in Arkansas. Not only does it look different than other kinds of litigation, with unique procedural steps like infringement and invalidity contentions and claim construction, but it is rare, with few cases actually filed and litigated in the state.1 As a result, only a handful of Arkansas attorneys market themselves as patent litigators and even fewer have tried a case to verdict.

One factor contributing to the scarcity of Arkansas cases has been the Federal Circuit’s liberal interpretation of the patent venue statute.

In 1990, that court broadly interpreted the patent venue statute, allowing plaintiffs to sue defendants in practically any district court in the country. Under the broad reading, forum shopping created favored jurisdictions. Most notably, the Eastern District of Texas garnered a reputation as a plaintiff-friendly, modern day “rocket docket.”2 But the concentration of suits filed in preferred districts is trending down, sparked by the U.S. Supreme Court’s May 2017 decision in TC Heartland v. Kraft Food Brands.3 TC Heartland fundamentally changed patent litigation by restoring a more narrow interpretation of the patent venue statute.

While patent litigation in Arkansas did not immediately increase in the year after TC Heartland, it’s too early to know its effect on the state’s patent-litigation landscape. Over time, the diversity of forums could continue to improve, and Arkansas district courts may experience an uptick in filed actions. Even with no change, TC Heartland marks a significant shift in venue law, and advisors to domestic corporate entities should familiarize themselves with the newly-potent venue defense.4 A history of venue in patent litigation5 Since 1897, a special statute has governed venue in patent actions.6 Venue was proper in either the district where the defendant was an “inhabitant” or in which the defendant maintained a “regular and es-

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tablished place of business” and committed an act of infringement.

The Supreme Court had previously interpreted “inhabit” for corporate defendants to mean state of incorporation.7 For decades, the Supreme Court upheld this interpretation and reaffirmed the special statute’s exclusive province over patent actions.8 In 1948, Congress codified patent venue in its current form at 28 U.S.C. § 1400(b). A plaintiff may bring his or her action in either the district (a) “where the defendant resides” or (b) “where the defendant has committed acts of infringement and has a regular and established place of business.” At the same time, Congress established the general civil venue statute and explicitly defined “residence” for a corporate defendant in “all actions” to mean state of incorporation, licensure, or wherever it does business.9 In 1957, after lower court disagreement on the meaning of the change in verbiage to the patent statute and the specific guidance added in the general statute, the Supreme Court reaffirmed the special venue statute’s sole control over patent actions and reaffirmed that “resides” still meant a corporate defendant’s state of incorporation.10

Fred Davis is an attorney at Kutak Rock LLP whose practice includes business and complex litigation, including patent litigation and the defense of class actions, and advising companies on privacy and data security.

Zachary Hill is a law student at the University of Arkansas. Mr. Hill has a Bachelor’s degree in Mechanical Engineering from the University of Arkansas and is interested in a career in patent litigation.

Patent venue remained largely the same until 1990. Two years prior, Congress amended the general venue statute to state that “[f ]or purposes of venue under this chapter” corporate defendants are “deemed to reside in any judicial district” where the corporation is “subject to personal jurisdiction at the time the action is commenced.”11 When asked about the breadth of Congress’ changes, the Federal Circuit held that the general statute’s reference to “chapter” meant it extended to venue in all civil actions, including patent cases.12 Accordingly, the court redefined “resides” in the patent venue statute to mean any district with personal jurisdiction—functionally eliminating any venue limitation and rendering the second venue option obsolete. No longer armed with a venue defense, a defendant was suddenly faced with the prospect of being hauled into any district court in the country in which it had minimum contacts, including alleged infringement activities.

The Federal Circuit’s decision opened the floodgates to forum shopping. In the years after, plaintiffs cultivated favored forums. The Eastern District of Texas quickly gained a reputation as a fast, plaintifffriendly forum and would dominate the patent-litigation landscape for decades. In the year prior to TC Heartland, 63% of all patent cases were filed in only five districts—36% percent of all cases were filed in the Eastern District of Texas.13 The next milestone in patent-venue history occurred decades later.

In 2011, Congress adopted the current version of the general venue statute, adding language that “[e]xcept as otherwise provided by law” the general statute will govern all civil actions, and “for all venue purposes[,]” a defendant corporation is deemed to reside in all districts where the defendant is subject to personal jurisdiction.14 Armed with more precise statutory language, the Supreme Court, at the end of 2016, granted certiorari in TC Heartland to answer whether Congress really intended to alter patent venue in its 1988 amendments to the general venue statute.

TC Heartland reaffirms that “resides” means place of incorporation In TC Heartland, Kraft sued competitor TC Heartland in Delaware, alleging its drink-mix products infringed on a Kraft patent. The case presented a then-familiar sight in patent litigation: while TC Heartland was organized and headquartered in Indiana and neither licensed nor with a local presence in Delaware, it shipped infringing products to the state.

The district court found these contacts sufficient to establish personal jurisdiction and denied TC Heartland’s motion to dismiss or transfer venue.15 The Federal Circuit affirmed the district court’s denial.16 Diving deep into the history of the patent and general venue statutes, the Supreme Court reversed the lower courts and overturned previous holdings that venue could be found in any district with personal jurisdiction. Specifically, the Court found that Congress never intended to change the patent venue statute and reinstated its 1957 decision that a domestic corporation17 “resides” only in its state of incorporation. The Court explained: The fact that § 1391(c) by “its terms” embraced “all actions” was not enough to overcome the fundamental point that Congress designed § 1400(b) to be “complete, independent and alone controlling in its sphere.” ….

This Court was not persuaded then, and the addition of the word “all” to the already comprehensive provision does not suggest that Congress intended for us to reconsider that conclusion.18

Post-TC Heartland patent venue TC Heartland marked the return of limited-scope venue in patent litigation. Faced with the Court’s narrow interpretation of “resides,” parties moved to test the breadth of the newly-relevant second venue option: a district where the defendant has committed acts of infringement and has “a regular and established place of business.”19 The Federal Circuit and commentators, often relying on dormant, decades-old precedent, have further established or opined on the narrow scope of § 1400(b). The basics of patent venue today look like this: •

“in the judicial district where the defendant resides;” or A domestic corporation* “resides” in its state of incorporation.20 • – In a state with multiple judicial districts, a corporate defendant “reside[s]” only in the district where it maintains a principal place of business.21 – A non-corporate defendant can be sued in any district where • a member is domiciled.22 –•

* Under 28 U.S.C. § 1391(c)(3), a foreign corporation may be sued in any judicial district.

•

“in the judicial district . . . where the defendant has committed acts of infringement and has a regular and established place of business” –•

“regular and established place of business” means: (1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant.23 • “physical place” means a building or a part of a building set apart for any purpose or quarters of any kind from which business is conducted.24 • “regular” requires a steady, uniform, orderly, and methodical manner—sporadic activity is not enough to meet this requirement. “Established” requires a stable business that is settled or fixed permanently.25 • the place must be a place of the defendant from which the defendant engages in business and not solely a place of the defendant’s employee.26

Patent-venue takeaways for Arkansas companies What do the new venue rules mean for Arkansas companies? Most significantly, a patent infringement action against a business organized in Arkansas and without an established, physical place of business in another state must be filed in the Arkansas district where the company’s principal place of business is located. This is true no matter where acts of infringement, including when goods are shipped across the country, allegedly took place. Even in cases where an Arkansas company has a physical presence in a judicial district out of state, a plaintiff must also allege infringement occurred in that district. In addition, the fact intensive nature of the second venue option provides some level of protection for Arkansas companies. As some commentators have suggested, in cases where venue under the second option is a close call, a plaintiff might choose to sue in the district where the business is organized to avoid a costly venue fight.27 Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

39

Year Before TC Heartland E.D. Tex. 36%

Other 37%

D. N.J. 4% N.D. III. 5%

C.D. Cal. 6%

Delaware 12%

The Arkansas Lawyer

Other 42%

D. N.J. 5%

E.D. Tex. 13%

Delaware 23% C.D. Cal. 9%

N.D. Cal.. 8%

Conclusion: In the year after TC Heartland, the diversity of forums is up, but it’s too soon to tell whether the venue changes will mean more patent litigation in Arkansas In the year after TC Heartland, there is already a noticeable increase in the diversity of forums where patent actions are filed.28 In the year before, 63% of all patent lawsuits were litigated in only five of the 94 (5.3%) district courts.29 In the year after, that share decreased to 58%, and the percentage of cases filed in other jurisdictions increased from 37% to 42%.30 Of note, the share of cases filed in the Eastern District of Texas dropped dramatically from 36% to 13% while Delaware, the country’s favorite state of incorporation, saw its share increase from 12% to 23%.31 The percentage share of jurisdictions has changed, but commentators have also noted a measureable decrease in the number of patent cases post-TC Heartland, attributing the decrease to fewer “high volume plaintiff ” filings.32 A decrease in filed cases could counteract some of the effect of increased ju40

Year After TC Heartland

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risdictional diversity. (See pie charts above.)33 Will these trends result in more patent litigation in Arkansas? It may be too soon to tell. In the year after TC Heartland, the number of patent cases filed in Arkansas actually decreased from previous years. (See bar graph above.)34 But the return of the venue defense means Arkansas must be home to some infringement actions. Even with a sustained dip in the number of suits filed by patent trolls, the diversity of forums should continue to increase as venue challenges rise. It is at least possible that patent litigation will increase in Arkansas. If it does, the district courts should address how they will handle the unique procedural mechanisms of patent cases, whether by establishing unique patent local rules, adopting the rules of other jurisdictions, or leaving the issue to judges on a case-by-case basis.

With only one full year since TC Heartland, it is too early to know whether the state’s patent-litigation landscape will

change. Interested parties should still take note of the venue changes, and the Bar will just have to wait and see whether this Arkansas rarity transforms from legal unicorn to a horse of a different color.

Endnotes: 1. Federal courts have exclusive jurisdiction over patent actions. 28 U.S.C. § 1338. The Federal Circuit has exclusive jurisdiction over all intermediate patent appeals. 28 U.S.C. § 1295(a)(1).

2. Of course, there are also advantages to jurisdictions with large patent case dockets, including patent local rules and judges familiar with patent law and allegations of infringement and invalidity.

3. 137 S. Ct. 1514 (2017).

4. This article addresses venue as it relates to corporate parties.

5. TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017).

6. 29 Stat. 695 (1897).

7. Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S. Ct. 935 (1892).

8. Stonite Prod. Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S. Ct. 780 (1942).

9. 28 U.S.C. § 1391(c) (1948).

10. Fourco Glass Co. v. Transmirra Prod.

Corp., 353 U.S. 222, 77 S. Ct. 787 (1957).

11. 28 U.S.C. § 1391(d) (1988).

12. VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990).

13. Geneva Clark, TC Heartland, Legal Trends, One Year Later, Lex Machina (May 23, 2018), https://lexmachina.com/tc-heartland-legal-trends-one-year-later/; Kelsey Thorkelson, Messing with Texas: How TC Heartland changed patent venue, Bench & Bar of Minnesota (Feb. 5, 2018), http:// mnbenchbar.com/2018/02/messing-withtexas-how-tc-heartland-changed-patentvenue/.

14. 28 U.S.C. § 1391(a), (c)(2) (2011).

15. Kraft Foods Grp. Brands LLC v. TC Heartland, LLC, No. CV 14-28-LPS, 2015 WL 5613160 (D. Del. Sept. 24, 2015).

16. In re TC Heartland LLC, 821 F.3d 1338 (Fed. Cir. 2016).

17. Venue remains proper against a foreign corporation in any judicial district in the country. 28 U.S.C. § 1391(c)(3); Brunette Machine Works, LTD. v. Kockum Industries, Inc., 406 U.S. 706, 92 S. Ct. 1936 (1972); In re HTC Corporation, 889 F.3d 1349, 1354–55 (Fed. Cir. 2018) (reiterating that

Experienced in Complex Public Service Matters For over 40 years, Dave Wilson has specialized in regulated and unregulated public and private service provider utility cases, both at state and federal levels. He’s maintained ongoing relationships within industries doing business in Arkansas and would be a valuable ally when the need arises.

His work includes regulatory hearings, mediation, contract matters, trials, and appeals. In addition to being admitted to practice before the Supreme Court of the United States and the Washington D.C. Circuit Court of Appeals, his experience includes working closely with State and Federal authorities in Washington D.C. and Arkansas: • The Federal Energy Regulatory Commission (FERC) • The Arkansas Public Service Commission • Arkansas General Assembly and US Congress, and many local and cooperative boards and city councils • The Arkansas Department of Environmental Quality (ADEQ) • The Environmental Protection Agency (EPA) • The Pollution Control and Ecology Commission • The Nuclear Regulatory Commission courts have consistently held that suing a foreign corporation for patent infringement falls outside the scope of § 1400(b) and instead is governed by § 1391).

18. TC Heartland, 137 S. Ct. at 1521.

19. In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017), is the seminal case on this option that should be consulted whenever the second venue provision is at issue.

20. TC Heartland, 137 S. Ct. at 1517.

21. In re BigCommerce, Inc., 890 F.3d 978 (Fed. Cir. 2018).

22. Jamie McDole, et al., Venue Options for Patent Owners After TC Heartland and In re Cray, IPWatchdog.com (Dec. 19, 2017), https://www.ipwatchdog. com/2017/12/19/venue-options-patentowners-tc-heartland-re-cray/id=91320/ (citing Chapman v. Barney, 129 U.S. 677, 681 (1889)).

23. In re Cray Inc., 871 F.3d at 1360.

24. Id. at 1362.

25. Id. at 1362–63. Compare KnappMonarch Co. v. Casco Prods. Corp., 342 F.2d 628, 629 (7th Cir. 1965) (finding no venue in a district where business only attended and displayed products at a semiannual trade show), with Remington Rand

To visit with Dave about a legal matter where he may be of service, call 501-376-4090. To learn more about Dave’s practice, and to see case examples, visit zacharydavidwilsonpa.com.

References available upon request

Bus. Serv. v. Acme Card Sys. Co., 71 F.2d 628, 629 (4th Cir. 1934) (finding venue in a district where a business had a five-year continuous presence).

26. Id. at 1363; see also Newpark Mats & Integrated Services, LLC v. Equipotential Matting, LLC, No. 4:17-CV-00304-BRW (W.D. Ark. Oct. 26, 2017) (transferring venue when the only physical presence was defendant’s purported agent).

27. Laura Whitworth, 2017 Patent Law Decisions of the Federal Circuit, 67 AM. U. L. Rev. 1141, 1146 (2018).

28. Clark, supra note 13.

29. Id. 30. Id. 31. Thorkelson, supra note 13.

32. Clark, supra note 13 (“Further, the decline in patent litigation filings from year to year following TC Heartland appears largely attributable to a reduction in HVP filings. The decline in overall patent litigation filings is from 4,487 to 3,936, a difference of 551 filings. By comparison, in the year following TC Heartland, HVP filings fall from 1,902 to 1,296, a difference of 606 filings, which is very close to that 551 filing drop in overall patent

litigation filings.”); see also Brian Howard, Lex Machina Q4 2017 End of the Year Litigation Update, Lex Machina (Jan. 16, 2018), https://lexmachina.com/lex-machina-q4-litigation-update/ (“Despite the decline . . . 2017 continues the pattern of relatively consistent monthly totals that has persisted since the dramatic spike in 2015 (cause by the end of Form 18)”).

33. Data from Clark, supra note 13.

34. Data collected from case information available on PACER at the time of writing.

The date of the TC Heartland decision (May 22) was used as the beginning date for each measured year. 

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Supreme Court Clarifies Standard for Disqualification of Attorneys

By Adrienne M. Griffis

I

n May, the Arkansas Supreme Court overruled precedent and clarified the requirements of Arkansas Professional Rule of Conduct 1.9, which governs duties to former clients, in The Park Apartments at Fayetteville, L.P. v. Plant1 (“Park Apartments�). Rule 1.9(a) prohibits an attorney who has formerly represented a client from representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, absent informed written consent.2 Standing alone, Rule 1.9(a) would be relatively easy to apply. However, Rule 1.9(b) extends the foregoing conflict of interest to former clients of any law firms with which an attorney was formerly associated, stating: A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired [confidential information] that is material to the matter; unless the former client gives informed consent confirmed in writing.3

Adrienne M. Griffis is an attorney at Dover Dixon Horne in Little Rock 42

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This extended conflict of interest is further imputed to all attorneys who are currently associated in the same firm.4 Due to the potentially vast number of conflicts of interests created by these extended and imputed conflicts, determining whether Rule 1.9 disqualifies an attorney from client representation has frequently been a source of frustration and confusion for the many attorneys who have practiced at multiple law firms during their careers.

For the purpose of determining whether an attorney must be disqualified, the attorney is presumed to have all of the confidential knowledge that any member of his or her previous firm possessed.5 The question before the Supreme Court in Park Apartments was whether this presumption can be rebutted by establishing a lack of actual knowledge of the

client’s confidential information by the challenged attorney or whether a lack of access by the attorney to such information must also be proven.6 Park Apartments involved a complaint filed in November 2015 by Plaintiff Shilah Plants (“Plants”) against three Defendants, including Lindsey Management Company, Inc. (“Lindsey”).7 Plants was represented by attorneys in the Housing division of the Jonesboro office of Legal Aid of Arkansas (“Legal Aid”), and the defendants were represented

by Lindsey’s in-house legal department.8 In February 2017, Plants filed a motion to disqualify Lindsey’s entire legal department because Summer McCoy (“McCoy”), one of the defendants’ attorneys, was previously employed by Legal Aid. McCoy worked in the Economic Justice division of the Springdale office of Legal Aid for six months in 2016, after which she joined Lindsey’s legal department in January 2017.9 While Ms. McCoy worked for Legal Aid, she did not participate in Plants’ case.10 She was not involved in any of the Housing division conferences, and she never accessed Plants’ file.11 However, Plants alleged that McCoy and her co-counsel should be disqualified because McCoy had access to Plants’ file while she worked for Legal Aid.12 The trial court disqualified McCoy from representing the defendants because “McCoy had full access to all of Legal Aid’s files, regardless of whether she had knowledge or represented [Plants] in any capacity while employed as an attorney at Legal Aid.”13 The trial court’s decision was based upon internally inconsistent language in two Arkansas Supreme Court cases—Burnette v.

Morgan14 and Norman v. Norman.15 In Burnette, the Court held that an attorney should be disqualified from representing a client “only when the attorney involved actually has knowledge acquired during the former association,” but then contradicted itself by requiring the challenged attorney to prove “not only a lack of knowledge but also a lack of access to information.”16 Eight years later in Norman, the Supreme Court reiterated that “an attorney must have actual knowledge . . . during his association before the attorney and his firm will be disqualified,” but yet again placed upon the challenged attorney “the burden of proving not only a lack of knowledge but also a lack of access to information.”17 Accordingly, Burnette and Norman inexplicably muddied the waters by re-

quiring the challenged attorney to prove his or her lack of access to the information in addition to lack of knowledge. The conflation of “knowledge” and “access” in Burnette and Norman likely occurred because establishing that an attorney did not have access to the client’s confidential information is a good way—and in some cases, perhaps the only way—to rebut the presumption that the attorney had knowledge of such information.

In Park Apartments, the Supreme Court reversed the trial court and overruled the portions of Burnette and Norman which required the challenged attorney to prove lack of access to confidential information.18 Now, to avoid disqualification, “the attorney must only rebut the presumption that she acquired actual knowledge of information protected.”19 This decision brings the case law in line with the plain language of Rule 1.9, which clearly states that an attorney must have “acquired” confidential client information to be disqualified.20 After clarifying the legal standard, the Supreme Court held that McCoy rebutted the presumption of knowledge by establishing that she was assigned to a different division, did not participate in any conferences for the division in charge of Plants’ case, and did not access Plants’ file or otherwise participate in her case.21 Determining whether the facts of a particular case warrant attorney disqualification involves a balancing act between the current client’s right to choose his or her counsel and the former client’s right to confidentiality.22 As Park Apartments makes clear, a current client should not be prohibited from engaging his or her chosen attorney when no confidential information about an adverse former client is actually known by that attor-

ney. However, the dissent in Park Apartments raises another issue inherent in this decision which was not addressed by either the trial court or the majority opinion—the appearance of impropriety. An attorney’s obligation to avoid the appearance of impropriety is an important ethical standard that should be considered in any instance where a violation of the rules of professional conduct is at issue.23 Although the dissenting opinion did not apply this ethical standard to the facts of the Park Apartments case, the appearance of impropriety in relation to Rule 1.9 has been previously addressed by the Supreme Court, most notably in Herron v. Jones.24 In Herron, the plaintiff in a medical malpractice lawsuit sought to disqualify defense counsel after one of his attorney’s legal secretaries began working for one of the defendant’s attorneys during the pendency of the litigation.25 The plaintiff argued that the secretary’s subsequent employment at a defense law firm, although not a disqualifying event under the rules of professional conduct applicable to attorneys, nonetheless created an appearance of impropriety sufficient to disqualify the firm.26 The Supreme Court determined that the appearance of impropriety was overcome by testimony that the plaintiff ’s firm cautioned the secretary not to disclose confidential information about the case; the defense firm ensured that the secretary would have nothing to do with the case, including by maintaining the file inside the attorney’s office; and the secretary had not had any contact with the case or spoken to anyone about the case since she switched jobs, nor would she do so in the future.27 Because adequate precautions were taken to avoid the disclosure of confidential informa-

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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January 31, 2020 Initial Deadline for submission of legislation to the Jurisprudence & Law Reform Committee for consideration for the ArkBar Legislative Package for the 2021 Legislative Session.

The voice of the Arkansas lawyer

For more information or to submit proposals, contact Karen Hutchins at the Arkansas Bar Association’s office at (501) 801-5663.

44

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tion, the secretary’s change in employment did not trigger an appearance of impropriety warranting disqualification of the defense firm.28 Failing to adhere to the confines of Rule 1.9 can have serious consequences. For example, in 2014, the license of a former Arkansas attorney was suspended for 90 days, and he was fined $10,000, for ethical violations resulting from representation of a party adverse to a former client.29 It is important to take adequate steps to prevent potentially disqualifying conflicts of interest. Robust conflict of interest screening procedures are, of course, crucial to protecting current and former client confidentiality. Former clients of attorneys with previous firm associations should be included in any database used to detect conflicts of interest. If a potential conflict of interest is identified, access to the client file should be actively limited to only those attorneys and staff members whose former associations have been vetted. This can be done electronically via security measures such as password protection, as well as physically through secured file storage areas.

To avoid any appearance of impropriety, the same precautions taken with respect to attorneys should be taken with respect to law firm staff.

The surest way to prevent disqualification, however, is to obtain a written waiver of the conflict of interest from the client. Rule 1.9 does not require disqualification of an attorney, even if he or she has actual knowledge of confidential information, if the client gives “informed consent confirmed in writing” by executing a waiver of the conflict of interest.30 Such a waiver is effective only upon disclosure of the circumstances surrounding the conflict of interest, including the attorney’s intended role on behalf of the new client.31 Therefore, to ensure consent is “informed,” the waiver should clearly identify the clients whose interests are adverse, identify all attorneys and law firms who have represented multiple clients, and provide a detailed description of all matters as to which the clients’ interests are adverse. The waiver should require the clients to affirm their knowledge and understanding of these facts and unequivocally waive any conflict of interest which may exist with respect to participation in the matter by all attorneys and law firms involved. The execution of a proper waiver is the best practice to avoid ancillary litigation over an attorney’s participation or the

potential for an inadvertent violation of the Arkansas Rules of Professional Conduct.

Endnotes: 1. 2018 Ark. 172.

2. Ark. R. Prof ’l Cond. 1.9(a) (2017).

3. Ark. R. Prof ’l Cond. 1.9(b).

4. Ark. R. Prof ’l Cond. 1.10.

5. Park Apartments, 2018 Ark. at 4, 545 S.W.3d at 758 (citing Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998)).

6. Park Apartments, 2018 Ark. at 1, 545 S.W.3d at 756.

7. Id. at 2.

8. Id. 9. Id. 10. Id. at 7.

11. Id. 12. Id. at 2.

13. Id. at 5 (internal quotations and emphasis omitted).

14. Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998).

15. Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990).

16. Burnette, 303 Ark. at 155–56, 794 S.W.2d at 148.

17. Norman, 333 Ark. at 654, 970 S.W.2d at 274.

18. Park Apartments, 2018 Ark. at 7, 545 S.W.3d at 759.

19. Id. 20. Ark. R. Prof ’l Cond. 1.9(b).

21. Park Apartments, 2018 Ark. at 7, 545 S.W.3d at 759.

22. Burnette, 303 Ark. at 155, 794 S.W.2d at 147–48.

23. Ark. R. Prof ’l Cond. pmbl. § 13A; Ark. R. Prof ’l Cond. 1.9 cmt. 10.

24. 276 Ark. 493, 637 S.W.2d 569 (1982).

25. Herron, 276 Ark. at 494, 637 S.W.3d at 570.

26. Id. at 496–97.

27. Id. at 496.

28. Id. at 497.

29. Tapp v. Ligon, 2014 Ark. 374, at 1, 6, 441 S.W.3d 4, 8–9.

30. Ark. R. Prof ’l Cond. 1.9.

31. In re Amendment of the Model Rules of Prof ’l Conduct, 788 S.W.2d 462, 464–65 (Ark. 1990). 

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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Revisiting the Prejudice Standard for Ineffective Assistance of Counsel Claims

By Carissa Byrne Hessick

W

Carissa Byrne Hessick is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr., Distinguished Professor Law at the University of North Carolina.

She served as co-counsel on an unsuccessful petition for certiorari to the U.S. Supreme Court in State v.

Thompson.

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hen it comes to the effective assistance of counsel, Arkansas is an outlier. It only allows convicted defendants to challenge the effectiveness of their counsel at sentencing if they received the maximum possible sentence. This rule is not only in direct conflict with cases from other jurisdictions, but it is also in conflict with the U.S. Supreme Court’s Sixth Amendment right-to-counsel doctrine.

The principles of that doctrine strongly suggest that any defendant who receives more than the minimum possible sentence should have the opportunity to prove prejudice.

The Sixth Amendment requires defendants receive effective assistance of counsel at all critical stages of a criminal prosecution, including the sentencing phase.1 In order to win an ineffective assistance of counsel claim, a defendant must demonstrate both that counsel’s performance was unreasonable under prevailing professional norms, and that the deficient performance prejudiced the defendant.2 In order to prove prejudice in a capital sentencing proceeding, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”3 But the prejudice standard for non-capital sentencings is not entirely settled.

All courts agree that defendants are entitled to effective assistance during non-capital sentencing proceedings, but they have not always agreed on the proper legal standard for establishing prejudice. Some courts have held that the appropriate prejudice standard is a reasonable probability that counsel’s deficient performance at sentencing led to any increase in her sentence.4 Others have held that the appropriate standard is a reasonable probability that, but for counsel’s deficient performance, her sentence would have been “significantly less harsh.”5 Arkansas alone has adopted a particularly harsh prejudice standard. It says that only those defendants who receive the maximum available sentence have suffered prejudice. So long as defendants’ sentences are below the maximum, they will not be able to challenge their attorney’s performance at sentencing—no matter how deficient the performance or how harsh the sentence they receive. The Arkansas Supreme Court has never

explained the basis for this standard. Most of the court’s decisions employing this prejudice standard simply cite previous cases.6 And in what appears to be the earliest case applying the standard, the court simply stated, without citation: “The jury subsequently returned a sentence of fourteen years, which was within the statutory range for either a class A or a class Y felony. As a result, petitioner suffered no actual prejudice from the error.”7 This was not always the standard for prejudice in Arkansas. Before 2002, Arkansas courts sometimes found prejudice in cases where the jury had not imposed the maximum sentence.8 And some post-2002 decisions of the Arkansas Supreme Court suggest defendants sentenced below the statutory maximum sentence must provide facts, and may not merely rely on the severity of the sentence imposed, in order to demonstrate prejudice.9 But other recent decisions make clear that the prejudice rule is not merely a requirement that defendants sentenced below the statutory maximum must provide more evidence, but instead it is an absolute bar on ineffective assistance claims.10 For example, in Buckley v. State, the court stated “prejudice was not shown as a matter of law because appellant received less than the maximum sentence for the offense charged.”11 And it went on to say that “no legitimate prejudice occurred here because appellant did not receive the maximum sentence.”12 The U.S. Supreme Court has yet to weigh in on the Arkansas prejudice standard. But its ineffective assistance of counsel cases suggest that it is unlikely to uphold the Arkansas standard. In Glover v. United States, the Court endorsed the “any increase in sentence” standard for all claims arising out of “a determinate [sentencing] system of constrained discretion.”13 Although the Glover Court did not explicitly address the appropriate standard for prejudice in sentencing systems that do not constrain discretion, the Court’s analysis did not depend on that distinction. Instead, the Glover Court reasoned that because the right to counsel is triggered by the imposition of a sentence of imprisonment, “any amount of actual jail time has Sixth Amendment significance.”14 The Court has since confirmed this principle in cases involving ineffective assistance of counsel during plea negotiations.15

Logic also suggests that the “any increase” prejudice standard is appropriate even when the sentence falls below the maximum sentence. That is because prejudice is a question about whether the violation of the defendant’s right to effective counsel harmed the defendant. Whenever counsel’s deficient performance at sentencing appears to have resulted in the defendant receiving a higher sentence than he otherwise would have, then a new sentencing proceeding is necessary in order to provide a remedy for the violation of his constitutional right to effective assistance. Put differently, any time that an attorney fails to provide constitutionally sufficient representation at sentencing and the defendant receives more than the minimum sentence, then it is possible that the defendant was prejudiced by his or her counsel’s performance. To demonstrate prejudice, defendants should only have to “demonstrate a reasonable probability that her sentence was increased by any amount of actual jail time.”16 The Arkansas Supreme Court had the opportunity to revisit its unique prejudice standard in State v. Thompson,17 but it failed to do so. The Thompson Court stated that counsel’s performance at sentencing involved “a matter of trial strategy,” and thus Glover did not control. But whether trial counsel’s decisions were a matter of trial strategy is irrelevant to the constitutionality of the state’s prejudice rule. Trial strategy is a question about the performance prong of the ineffective assistance test.18 It has no bearing on the question of prejudice. And Arkansas courts fail to apply the any amount of actual jail time standard in cases where performance is not at issue.19 In her dissenting opinion in Thompson, Justice Hart challenged the majority to explain how its prejudice standard is consistent with the Supreme Court’s decision in Glover.20 But the Thompson majority did not accept the challenge.

Although the courts have failed to justify the harsh prejudice standard, one can assume that the standard is motivated, at least in part, to reduce the number of collateral attacks on sentences.21 By declaring that only defendants who have received the maximum sentence can challenge the effectiveness of counsel at sentencing, Arkansas courts have significantly limited the pool of defendants who can challenge their sentences on appeal.

But efficiency cannot be the only reason for refusing to vindicate constitutional rights— if it were, then we could simply dispense with the provision of counsel in the first instance, or even abolish trials altogether.

To be sure, the doctrine of finality allows courts to consider the conservation of judicial resources when deciding post-conviction issues.22 But finality concerns do not counsel against revisiting any issue on collateral attack; rather finality counsels that collateral attacks in criminal cases must strike a balance between obtaining “correct” or fair outcomes and minimizing costs associated with revisiting issues that have already been litigated. The costs associated with resentencing are minimal,23 especially as compared to the costs of a new trial or the costs of a new capital sentencing proceeding.24 Thus, the desire to obtain a “correct” or fair sentence (that is, a sentence imposed after adequate representation) need not be compromised in order to conserve resources, because the resources at stake are minimal.

In any event, if finality and the conservation of judicial resources is the reason that Arkansas courts have adopted this unique prejudice standard, they should offer that explanation in their decisions. Any such explanation should include the reason why no other jurisdiction has chosen such a narrow prejudice standard.

Because Arkansas is the only jurisdiction to have adopted this particular prejudice

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standard, the U.S. Supreme Court may decide to grant certiorari on this issue. I have little doubt that, if it were to grant certiorari on this issue, the U.S. Supreme Court would find that the Arkansas prejudice standard violates the Sixth Amendment right to the effective assistance of counsel.25 But rather than forcing defendants to petition the U.S. Supreme Court for review, I hope that the Arkansas Supreme Court chooses to revisit its prejudice standard and ensure that even those defendants who receive less than the maximum possible sentence also receive the effective assistance of counsel at sentencing.

Endnotes: 1. See Mempa v. Rhay, 389 U.S. 128 (1967) (holding that the Sixth Amendment right to counsel includes right to counsel at sentencing).

2. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

3. Id. at 694.

4. See Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013); United States v.

Hankerson, 496 F.3d 303, 310 (3d Cir. 48

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2007); Phillips v. White, 851 F.3d 567, 582 (6th Cir. 2017); United States v. Strasser, 502 F. App’x 736, 738 (10th Cir. 2012); State v. Mills, 137 So. 3d 8, 10 (2014), enforcement denied, 170 So. 3d 974 (La. 2015); People v. Gardner, 482 Mich. 41, 50 n.11 (2008); State v. Guerard, 273 Wis. 2d 250, 278 (2004).

5. See Charles v. Thaler, 629 F.3d 494, 499 (5th Cir. 2011).

6. E.g., Bond v. State, 288 S.W.3d 206, 212 (Ark. 2008).

7. Young v. State, 699 S.W.2d 398, 399 (Ark. 1985).

8. See Shells v. State, 733 S.W.2d 743, 746–47 (Ark. Ct. App. 1987).

9. E.g., State v. Smith, 249 S.W.3d 119, 122 (Ark. 2007) (“[A] defendant who has received a sentence less than the maximum sentence for the offense cannot show prejudice from the sentence itself.”); McGahey v.

State, 2009 Ark. 80 (2009) (“Appellant is required to provide facts showing evidence of actual prejudice . . . prejudice cannot be presumed when a defendant receives a sentence that is less than the maximum allowed for that crime.”).

10. E.g., Liggins v. State, 505 S.W.3d 191, 194–95 (Ark. 2016) (stating that a defendant “did not establish that he was prejudiced” because the “maximum sentence to which Liggins could have been sentenced for his murder conviction was life without parole, but Liggins received a sentence of forty years’ imprisonment for that conviction”).

11. No. CR 06-172, 2007 WL 1509323, at *5 (Ark. May 24, 2007).

12. Id. 13. 531 U.S. 198, 204 (2001).

14. Glover, 531 U.S. at 203 (citing Argersinger v. Hamlin, 407 U.S. 25 (1972), and Scott v. Illinois, 440 U.S. 367 (1979)).

15. See Lafler v. Cooper, 566 U.S. 156, 168 (2012) (noting that “prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.”); Missouri v. Frye, 566 U.S. 133, 147 (2012) (“To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.”).

16. Carissa Byrne Hessick, Ineffective Assistance of Counsel at Sentencing, 50 B.C. L. Rev. 1069, 1086 (2009).

17. 510 S.W.3d 775 (2017).

18. See Strickland, 466 U.S. at 689.

19. E.g., Liggins, 505 S.W.3d at 195 (applying heightened prejudice standard and stating that “it is unnecessary to discuss appellate counsel’s performance regarding the victim-impact issue because Liggins did not establish that he was prejudiced”).

20. State v. Thompson, 510 S.W.3d 775, 782 (Ark. 2017) (Hart, J., dissenting) (noting that the court has “never explained [its] reason for adopting the draconian standard” and also noting that the “prejudice standard is in clear tension with Glover”).

21. See Hessick, supra, at 1095–97 (discussing gatekeeping as a possible reason for the heighted prejudice standard).

22. See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963); Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 148-49 (1970).

23. See United States v. Williams, 399 F.3d 450, 461 (2d Cir. 2005); Charles A. Wright, Federal Practice and Procedure § 856, at 511–12 (2004).

24. See Stephen F. Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283, 375 (2008) (noting the legal and factual complexity of capital cases, including the “limitless scope of a capital sentencing trial, with the whole range of potential arguments for leniency available”).

25. See Hessick, supra, at 1091–95 (criticizing the Arkansas standard). 

Seven Attorneys Honored for Pro Bono Service During Pro Bono Week—October 22-26, 2018—the Center for Arkansas Legal Services, Legal Aid of Arkansas, and Arkansas Access to Justice Commission recognized seven honorees for their pro bono service assisting low-income Arkansans in civil legal cases.

Lori Holzwarth

Pulaski County VOCALS Attorney of the Year Hyden, Miron and Foster PLLC

Ms. Lori Holzwarth is an attorney with Hyden, Miron and Foster PLLC in Little Rock, Arkansas.

She has been a member of VOCALS since 2004 and has contributed more than 100 hours of service to clients of the Center for Arkansas Legal Services. Ms. Holzwarth has donated her time representing clients with wills, estates, guardianship, and family law issues. She has also participated in numerous pro bono clinics for first responders, cancer victims, and senior citizens. She is a graduate of the University of Arkansas School of Law.

Diana Turner

Jefferson County VOCALS Attorney of the Year Baim Law Firm

Diana has been a valued partner for legal services since soon after beginning her practice in 1994. She initially focused on cases involving spousal abuse. After developing a bankruptcy practice, she has also assisted many legal services clients in Southeast Arkansas with bankruptcy.

Diana is a graduate of the UA Little Rock William H. Bowen School of Law.

Donna Price

Outstanding Pro Bono Attorney Award Law Office of Donna M. Price

Donna Price attended University of Central Arkansas as an undergraduate then earned her J.D. at University of Tulsa College of Law. She is passionate about helping people who really need it but cannot afford it, particularly women, children, and the elderly. “I strive to change the world for the better one client at a time. Knowing that I’ve improved the lives of my clients gives me satisfaction and hope that a better world is possible,” says Price.

Ariel Snyder

Outstanding Pro Bono Attorney Award Dykema

Ariel Snyder of Imboden graduated from Arkansas State University with her undergraduate degrees in philosophy and Spanish, then earned her J.D. with honors from the UA Little Rock William H. Bowen School of Law in 2013. She practices in the Corporate Finance practice group of Dykema. Snyder has volunteered for Legal Aid of Arkansas and for the Hispanic Center, where she represented clients in need of immigration services. She has also presented multiple CLE seminars on immigration.

Russell Winburn

Outstanding Pro Bono Attorney Award Odom Law Firm

Russell Winburn received his JD from the University of Arkansas School of Law in 1987.

He is licensed to practice in all Arkansas state and federal courts, the U.S. Court of Appeals for the Eighth Circuit, and the U.S. Supreme Court.

“Legal Aid refers me to some of my best clients who for the most part really need my help and are very grateful for the services I provide,” Winburn says.

Jeannie Winston

Outstanding Pro Bono Attorney Award Winston Law Firm

Jeannie Winston, born and raised in Arkansas, practices law at her Winston Law Firm, which provides personalized legal services to individuals, families, and businesses. Before settling into private practice, she served as Vice Chancellor for Information Services and Chief Information Officer for more than 15 years at UA Little Rock.

Winston worked on the Arkansas Medicaid account to learn about the healthcare needs of our citizens. “As a lawyer, I am committed to being a valuable contributor and positive influence in my community.

The goal for my law firm is to be a center of excellence and to provide quality legal services to my clients regardless of their ability to pay legal fees. I am committed to serving the citizens of our great state,” she says.

Brooks Gill

10th Judicial District VOCALS Attorney of the Year Gill Law Firm

Brooks is a 1985 graduate of the UA Little Rock William H. Bowen School of Law who practices in Dumas, Arkansas. He began accepting pro bono case referrals in the 1980s through the Arkansas Volunteer Lawyers for the Elderly Program. According to Vernon Walker at the Center for Arkansas Legal Services, “Brooks has not only been a long-time participant in legal services’ attorney referral programs, he has often been gracious in sharing his knowledge and information in the areas of his legal practice.”

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ARKANSAS CHAPTER The following attorneys are recognized for

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DISCIPLINARY ACTIONS

Judicial Discipline & Disability Commission Actions On September 20, 2018, the Arkansas Judicial Discipline and Disability Commission announced the filing of Formal Charges in JDDC Cases: 17-181, Supreme Court Chief Justice John Dan Kemp; 17-182, Supreme Court Justice Robin Wynne; 17-183, Supreme Court Justice Courtney Goodson; 17-184, Supreme Court Justice Jo Hart; 17186, Supreme Court Justice Karen Baker; 17187, Supreme Court Justice Rhonda Wood.

On October 4, 2018, the Arkansas Judicial Discipline and Disability Commission announced the filing of Formal Charges in JDDC Cases: 17-185, Supreme Court Justice Shawn Womack.

The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.

Attorney Disciplinary Actions

Final actions from July 1, 2018 - September 30, 2018, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC).

Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

SUSPENSION: CHARLES DWAIN OLIVER of Hampton, Bar No. 2001009, in Case No. CPC 2018003, by Findings & Order filed July 27, 2018, was suspended for a period of 60 months for violations of Rules 1.1, 1.16(a), 3.1, 3.3(a)(1), 3.3(a)(3), 3.4(a), 3.4(c), 3.7(a), 8.4(a), 8.4(c), and 8.4(d). Oliver was also reprimanded for his failure to respond to the formal complaint.

The complaint was based on information provided by Circuit Judge Robin Carroll. In 2015, Oliver drafted three Wills for Jimmie

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Sue Roark, the last two on November 2016, each appointing Oliver to probate her Will.

Roark died January 1, 2017. For daughter Cindy, Attorney Michael Stuart contacted Oliver by letter to advise Stuart had the third Will in his possession, and asked Oliver to start the probate proceedings. On January 19, 2017, Oliver filed the Roark Petition in Calhoun County with the November 1 (second) Will. The court appointed daughter Cecilia as executrix. Stuart moved to set aside the order, attaching the November 10 (third) Will and filed a Contest of Will, alleging Oliver made false representations to the court and failed to list or give notification of the probate of the estate to all heirs included in the Will. The main differences between the second and third wills were the beneficiaries and distributions of estate assets.

Oliver appeared on behalf of the Executrix and the Estate. Stuart appeared on behalf of the other three sisters. Oliver alleged that the November 10 (third) Will was invalid and that is why he filed the November 1 (second) Will, alleging that when he drafted the November 10 Will Roark “was not herself.”

Oliver brought into question Roark’s mental state at the time he made changes to the November 1 Will on November 10. The court questioned Oliver concerning his personal involvement in Roark’s three wills and asked if he realized that he would become a witness to Roark’s competency by offering into probate the second Will rather than the third Will executed nine days later. Cecilia filed a petition to contest the November 10 Will and to have the November 1 Will declared the last Will of Roark. The court found (a) Oliver failed to give notice to the beneficiaries or Stuart Law Firm of the probate of the November 1 Will; (b) Oliver failed to notify the court of the November 10 Will, which revoked the November 1 Will; (c) Cecilia failed to file any objections to the Contest and Motion to Set Aside the Order; and (d) no contest of the November 10 Will had been filed pursuant to Arkansas statute. The court set aside the order appointing Cecilia as Executrix and probating the November 1 Will. An independent administrator was appointed. Oliver was removed as attorney for the Roark estate.

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We’d love to see all Arkansas’ lawyers, judges, family members, and law students this happy… but, until that time comes, JLAP is here for you when you’re having some bumps in your road because of stress, anxiety, depression, drinking or using drugs too much, problems from past trauma, family troubles, or cognitive impairment.

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DANA A. REECE of North Little Rock, Bar No. 87142, in Case No. CPC 2018010, on a referral by Circuit Judge Mackie Pierce, by Findings & Order filed August 7, 2018, had her law license suspended for six months for violations of Rules 1.1, 1.3, 1.4(a)(4), and 8.4(d). Reece represented Ms. Jordan Kittler in a divorce case before Judge Pierce. Reece, opposing counsel Pipkins, and the trial court assistant participated in a telephone conference and agreed a hearing would be held on July 10, 2017. When the case was called, both parties and counsel Pipkins were present. Reece was not present.

Ms. Kittler stated that other than when Reece advised her of the court date, she had not spoken to Reece since that conversation.

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After being advised of the situation and her options, Ms. Kittler chose to go forward with the hearing, and the issue of marital debt was addressed. The following day, Reece entered Judge Pierce’s office to speak to him. Judge Pierce was on the bench, so Reece spoke to the law clerk and trial court assistant. Reece stated that she wanted to apologize to Judge Pierce for her mistake in calendaring the hearing and joked that her client did better without her.

REPRIMAND: KEN D. SWINDLE 97234, in case No. information provided Mullins, by Findings

of Rogers, Bar No. CPC 2017-023, on by attorney Bradley & Order filed July

25, 2018, was reprimanded and fined $6,000 for violation of Rule 5.4(a)(2) for impermissibly splitting a legal fee with a non-attorney who referred the client to Swindle. Swindle had a client for whom a $180,000 settlement was obtained in early 2014. The client was referred to Swindle by Rogers tax-preparer Francisco Menendez, a non-lawyer. Swindle agreed with Menendez that Swindle would give Menendez 10% of the fee Swindle obtained on the client.

Swindle’s Settlement Memorandum of March 19, 2014, for the client shows the $180,000 settlement recovery and a $60,000 attorney’s fee to Swindle. There is no charge listed for Francisco Menendez. By his IOLTA trust account check, Swindle then paid Menendez $6,000, representing 10% of Swindle’s earned legal fee in the matter.

Menendez and Mullins confirmed the feesplitting arrangement in the matter, and Mullins confirmed the knowing disregard

by Swindle for the professional conduct rules governing such fee arrangements. On July 20, 2018, Swindle withdrew his request for a public hearing in this case and agree to pay negotiated costs related to all three cases.

KEN D. SWINDLE of Rogers, Bar No. 97234, in case No. CPC 2016-119, on information provided by a Court of Appeals opinion from June 19, 2013 in Ken Swindle v. Rogers Board of Education & Anita Turner, No. CV-12-1081, at a public hearing on July 19, 2018, by Findings & Order filed July 26, 2018, was reprimanded and ordered to pay the Rogers School District $7,120 restitution for its legal fees and expenses for violations of Rules 3.1, 4.4(a), and 8.4(d). Swindle agreed to pay negotiated costs totaling $3,480 related to all three cases and waived his right to appeal in the two hearing cases.

In March 2012, Swindle’s five-year-old son J.S., a kindergarten student was called down to the office for his third use of the “F-word” at school. Principal Turner called the father at 11:15 a.m. to come pick J.S. up, as he was being suspended for the remainder of the school day. Mr. Swindle declined to do so, and informed Ms. Turner that if she suspended his son he would file a lawsuit.

Rather than pick up his son, after a brief court appearance, Swindle prepared his complaint against the school district and Turner, filed it in Bentonville at 2:51 p.m., and then personally took a copy to Ms. Turner at school in Rogers. Swindle’s complaint asked that his

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501-372-5115 www.bushmanreporting.com son be allowed to return to school pending a school board hearing on the matter, that any record of the suspension be deleted from the son’s record, and for a jury trial. Because neither parent picked up J.S., he served about 3.5 hours of in-school suspension on March 13 in Principal Turner’s office doing school work until the end of the normal school day at 2:45 p.m.

On May 15, 2012, the Rogers School Board conducted a hearing on the J.S. case. By a 6-0 vote, the Board affirmed the disciplinary action taken by school personnel toward J.S. Swindle then amended his complaint, adding a claim for breach of contract, claiming the school discipline policy constituted a contract between the school and the parents and student and that the district had violated its own policy by the action taken against J.S. Judge Duncan ruled there was no contractual obligation regarding the discipline, Principal Turner acted appropriately on March 13, and the intervening cause for the son’s suspension was the failure of the parents to pick up their child when offered the opportunity to do so.

Judge Duncan entered an Order denying Swindle relief and granting summary judgment to the school district and Turner.

The Court of Appeals affirmed the trial 54

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court, stating, in part, that Swindle’s request for relief lacked foundation in any source of law. The Supreme Court denied review. The school board expended at least $7,120.33 in legal fees and costs to defend the suit and the appeals.

CAUTION: FRANCIS PARKER JONES, III of Benton, Bar No. 2006083, in Case No. CPC 2017007, on a complaint filed by the Public Employees Claims Division (PECD) of the Arkansas Insurance Department, by Findings & Order filed August 21, 2018, was cautioned for violations of Rules 1.15(a)(6), 4.4(a), 8.4(c) and 8.4(d). Jones represented Jonathan Warner, an employee of the Arkansas Department of Correction, who was injured while driving an ADC van hit by a rented vehicle being driven by an uninsured driver. From the rental car company, Warner received $25,000 which was placed in Jones’ trust account. As a State employee, Warner was insured by the PECD, which, by letter of September 20, 2010, put Jones on notice of the amount of benefits paid on behalf of Warner and asserted a right of subrogation and an absolute lien by Arkansas law. The

van Warner was driving was insured by a policy with a $100,000 limit, which was interpled with the court. At a hearing the parties reached an agreement that Warner would receive $61,400 of the $100,000.

PECD claimed Warner had received $96,000 in benefits and that there was an agreement where it was entitled to receive $39,750 of the funds received by Warner. PECD mailed Jones a workers’ compensation petition and a proposed order which detailed the amount of the benefits provided to Warner, the amount of money received by Jones, and the amount of money to be received by Warner following distribution. Jones did not respond to that letter or any follow-up letters from PECD. PECD then filed a grievance with the Office of Professional Conduct. Jones deposited $25,000 from the rental car policy and then distributed the $61,400 to Warner as his share of the van insurance proceeds.

Jones then withdrew $25,920 for his legal fees and $31,635 presumably then went to his client. The balance in his trust account was $29,060, over $10,000 less than the $39,750 PECD claimed it was due. Jones denied he agreed or that the court order required him to pay the $39,750 claim of PECD. JEREMIAH PEARSON of Siloam Springs, Bar No. 2001218, on a complaint by Susan Harder, in Case No. CPC 2018-019, by Consent Findings & Order filed August 7, 2018, was cautioned and ordered to pay a fine of $869.06 and costs of $200 for violations of Rules 1.1, 1.2(a), 1.4(a)(3), 1.4(c), and 8.4(d). Harder retained Pearson in February 2015 in a personal injury case. Pearson failed to communicate with Harder, and Harder believed her case with Pearson ended with no action and she filed bankruptcy in May 2017.

The bankruptcy court discharged Harder’s debts. Pearson settled Harder’s case without her knowledge or authorization. Immediately after receiving payment in September 2017, Pearson collected his 25% contingency fee of $1.069.06 and made no payment to Harder.

In November 2017, Harder learned from her chiropractor that Pearson had settled her case and received payment. Harder contacted Pearson, who then distributed funds to Harder.

MELYNDA GIBSON PEARSON of Texarkana, Texas, Bar No. 95076, on a complaint by Lori Nelson, in Case No. CPC 2018-004, by Findings & Order filed July 31, 2018, was cautioned for her violations of Rules 1.3, 1.16(d), and 8.1(b). Pearson represented Nelson in a divorce during which

Pearson received three payments from the opposing party to go toward dental expenses of Nelson and her children.

Pearson deposited these funds in April and May 2016 but failed to pay the providers until February 2017, after having been terminated by Nelson in December 2016. OPC wrote to Pearson on three dates, sent by multiple methods, and Pearson failed to respond to OPC’s requests for information.

KEN D. SWINDLE of Rogers, Bar No. 97234, in Case No. CPC 2016-096, on information provided by a Court of Appeals opinion of March 12, 2014, in Ken Swindle v. Southern Farm Bureau Casualty Ins. Co., No. CV-13-753, at a public hearing on July 18, 2018, by Findings & Order filed July 26, 2018, was cautioned for a violation of Rule 8.4(d) for filing and pursuing a hasty and frivolous lawsuit through three courts over his two clients’ settlement checks. Swindle agreed to pay negotiated costs totaling $3,480 related to all three cases and waived his right to appeal in the two hearing cases.

Swindle represented two clients on injury claims against an insured of Southern Farm Bureau Casualty Insurance Company (“SFB”). Both claims were settled, SFB checks on First Security Bank (“FSB”) were issued, and releases executed in August 2012.

SFB delivered its checks dated August 22, 2012, to Swindle for $13,500 payable to client D, Swindle, and Unruh Chiropractic Clinic, and for $11,000 payable to client P, Swindle, and Unruh. Swindle deposited both settlement checks twice in his IOLTA account at Arvest Bank, and twice in September each check was returned due to either improper or illegible endorsements according to the 2013 affidavit of a long-time FSB officer. Swindle disputes this through the statement of then FSB employee Lyles, as related by the 2013 affidavits of Davia Swindle and Palacios in the civil case. On Friday, September 28, 2012, referencing Palacios’ telephone call with SFB adjuster Blackburn the previous day, Swindle made demand on SFB by faxed letter for full payment of $24,500 for both checks by 5:00 p.m. that same day or he would file suit for breach of contract and seek attorney’s fees. Blackburn’s 2013 affidavit stated that in the telephone conversation with Palacios he offered to issue replacement checks to Swindle. Swindle disputed this offer was made on September 28. The 2013 affidavit of an FSB officer gave her version of the facts involving the checks in and around September 2012, concluding SFB always had adequate funds on deposit at FSB

to cover these two SFB checks. May 2013 affidavits submitted by two Swindle Law Firm employees relate that a then Rogers FSB employee Lyles informed them on September 28, 2012, that the endorsements on the settlement checks were good but there were no funds in the account for these checks.

Swindle submitted no affidavit from Lyles.

On Monday, October 1, 2012, at 12:39 p.m., Swindle filed suit against SFB over the two checks. On October 19, 2012, SFB counsel Sidney Davis, Jr., mailed Swindle two replacement checks by certified mail, restricted delivery. Swindle and his office failed to sign for the Davis letter, and the two replacement checks were returned to Davis. On November 9, 2012, Davis emailed Swindle that he had sent replacement checks by certified mail and asked if Swindle had received the checks. Swindle responded that he had not received them. On February 8, 2013, attorney Paul Smith, for Swindle, wrote Davis asking that SFB reissue the checks. On February 18, 2013, Davis mailed Smith a second set of replacement checks and asked Smith if that ended the matter. On April 9, 2013, Swindle’s motion for judgment on the pleadings was filed, stating Swindle had been paid and the only issue remaining was an award of attorney’s fees for Swindle, as the prevailing party. An Order was entered granting summary judgment to SFB and awarding $6,785.60 in attorney’s fees against Swindle to SFB. Swindle appealed.

Swindle sought reversal on two points: (1) entry of judgment to SFB was error, and (2) sanctions against Swindle for filing a “frivolous” lawsuit were not warranted in the case. The Court of Appeals affirmed on both issues, stating SFB did everything required of it regarding payment of the settlement funds, including that immediate payment of the settlement funds was not procured because of repeated mistakes by appellant (Swindle), and Swindle appeared to have filed suit out of anger rather than any need to do so. Rehearing was denied.

On review, the Supreme Court in No. CV14-250 affirmed in part, reversed in part, and vacated the Court of Appeals opinion.

The four-judge majority vacated the $6,785 award of attorney’s fees against Swindle. All seven justices voted to affirm the trial court on its grant of summary judgment to SFB and to deny Swindle an award of attorney’s fees as the prevailing party. 

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TSCHIEMER

From the ordinary to the most complex, no appeal is too small or large

LEGAL BRIEFING

Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court

Handling all your briefing needs Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at www.arkbar.com.

For a complete list of decisions see www.tschiemerlegalbriefing.com

Robert S. Tschiemer

Ark. Bar 84148 P.O. Box 549 Mayflower, AR 72106-0549 501.951.3303 (p) 501. 377.9866 (f) robert@tschiemerlegalbriefing.com www.tschiemerlegalbriefing.com

FORENSIC PSYCHIATRY GERALD S. STEIN, M.D. Cell: 479-244-6582 FAX: 970-987-5100

e-mail: jerrysteinmd@gmail.com See CV: www.geraldsteinmd.com

Office Manager Rebecca Stein 479-244-5060

645 CR 235, Eureka Springs, AR 72632 56

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Arkansas Bar Foundation Report by Ann Dixon Pyle, Executive Director, Arkansas Bar Foundation

Pay it Forward Autumn is often a time of giving, and we thank the many Fellows and other individuals who have given of their time, talent and resources and donors who have contributed to further the mission of the Arkansas Bar Foundation. In turn, the Foundation looks forward this year to giving back as well—from awarding scholarships to Arkansas law students to providing funding to various organizations for law-related projects to designating a portion of funds from our recent friendraiser to the statewide mock trial program.

Woo Pig Soireé Under the leadership of this year’s President, Jason B. Hendren of Rogers, the Foundation held its second annual Foundation Friendraiser in Bentonville. Thanks to 29 generous sponsors, and the support of guests and other donors, Woo Pig Soiree, held at 21c Museum Hotel on October 5, was a success with approximately 90 guests in attendance. Net proceeds benefitted the Tracey and Jason Arkansas Bar Foundation with 25% of net Hendren with Vicki S. Vasser-Jenkins proceeds designated to the Arkansas Mock (photo credit: Chadwick Trial Competition. Many thanks to the Turner Photography) hard-working efforts of the Foundation’s Development Committee under Vicki S. Vasser-Jenkin’s leadership as Chair and members Curtis E. Hogue, Jamie Huffman Jones, Conrad T. Odom and Edward T. Oglesby.

Sustaining Fellowship Sustaining Fellows are vital to the growth of our operations of the Foundation. A voluntary contribution from a Fellow of $100.00 annually bestows the name Sustaining Fellows on our rolls. We are grateful to the increase since July of our Sustaining Fellowship contributions. In a future edition of The Arkansas Lawyer this bar year, we will recognize all our Sustaining Fellows as of that date. In addition, all Sustaining Fellows will be recognized in June 2019 on our Roll of Fellows at the Fellows’ Dinner and at the Foundation Exhibit booth.

If you are not a Sustaining Fellow and wish to make a contribution, please call Ann Dixon Pyle at the Foundation at 501-801-5670 or contact by email: apyle@arkansasbarfoundation.com. #GivingTuesday 2018 Please mark your calendar for Tuesday, November 28, 2018, for this year’s #GivingTuesday. This is a global day of giving, providing charitable funds to your favorite nonprofit and charitable organizations.

I encourage you to remember the Arkansas Bar Foundation on that day. Funds donated to the Foundation on #GivingTuesday 2018 will be designated to #ElevateEducation. Funds raised for the #ElevateEducation program will be used to purchase the book at cost, “Scales of Justice,” written by Taylor Dugan, a former teacher and current Arkansas attorney with a goal to educate elementary school children to understand the law and judicial system. Attorneys and local bar associations who want to utilize the reading of this book in their Law Day 2019 activities in local schools may request a copy and will be provided a book for as long as supplies last.

Memorials Good news and growth are also accompanied at times with grief and loss. The Arkansas Bar Foundation received the following memorial contributions during the period August 1– October 15, 2018, in memory of friends and colleagues who will be missed dearly. Thank you to the donors who remembered the following: In Memory of Judge Robert Fussell Mary Ann and Don Schnipper In Memory of Mrs. Glindal Sue Green Judge Bill Wilson and Judge Cathi Compton In Memory of Mrs. Frances Miller Judge Bill Wilson and Judge Cathi Compton In Memory of Robert Shults Philip E. Kaplan Trudy and Peter Kumpe Hayden and Gordon Rather

Mary Ann and Don Schnipper Mike Wilson

In Memory of W. Lee “Wimp” Tucker Justice Robert H. Dudley Sue and Judge John Plegge

Watts, Donovan & Tilley, P.A.

Scholarship Contributions and Gifts Trust funds from the former Springdale Lawyers Club Held

by Crouch, Harwell, Fryar & Ferner, PLLC designated to assist the 2019 Arkansas High School Mock Trial Competition Championship Team Friday, Eldredge & Clark Friday, Eldredge & Clark/Herschel Friday Scholarship Sebastian County Bar Association Sebastian County Bar Association Scholarship

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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The Arkansas Lawyer

www.arkbar.com

IN MEMORIAM Frank W. Booth of Van Buren died September 4, 2018, at the age of 77. He was a practicing attorney in Crawford County for 51 years with the Booth Law Firm and city attorney for Kibler.

He was a 1958 graduate of Van Buren High School.

Emily DeVenney of Hope died August 26, 2018, at the age of 76. Mrs. DeVenney was a retired registered nurse and attorney at law.

Gregory S. Kitterman of Little Rock died October 17, 2018, at the age of 59. Greg graduated from Jonesboro High School in 1977. After graduating from Arkansas State University, he attended law school at the University of Arkansas in Fayetteville, and completed his Juris Doctorate at the University of Arkansas at Little Rock School of Law in 1984. Greg’s early years as a practicing attorney were spent as a sole practitioner. In 1992 he built a new law office on Garland Street in downtown Little Rock and continued his practice there alongside his brother and brother-in-law. Although he practiced primarily in Little Rock, he represented clients in most, if not all, Arkansas counties. He was well known among lawyers and judges as an outstanding attorney and presided over many trials as a special judge.

The Hon. Jerry Wayne “Jake” Looney of Mena died October 22, 2018, at the age of 74. He was the former dean of the University of Arkansas School of Law and founder of the school’s LL.M. Program in Agricultural and Food Law. He retired from the U of A in 2000 and moved back to his hometown of Mena where he returned to farming and began his judicial career. In addition to 40 years practicing law and 20 years of teaching, Looney served as a judge for the 18th West Judicial Circuit and Polk County District Court. Throughout his career, he

published more than 150 articles and several books. Looney received a Bachelor of Science in agriculture from the University of Arkansas (1966), a Master of Science in animal science and another in agricultural economics from the University of Missouri (1968, 1976) and a Juris Doctor from the University of Missouri at Kansas City (1971). He earned three more advanced degrees while sitting on the bench: a Master of Arts in history from the University of Arkansas (2010) and a Masters and Doctorate of Judicial Studies (2008, 2012) through a joint program between the National Judicial College and the University of Nevada-Reno.

Leon Francis Pesek, Sr., of Texarkana, TX, died July 7, 2018, at the age of 89. Judge Pesek was a retired 102nd District Judge and a Korean War Army veteran and former JAG officer.

Jerry Allen Rochelle of Texarkana, TX, died July 4, 2018, at the age of 78.

He was dedicated to the legal profession with a successful law practice for over 50 years. He graduated from Texas Senior High School in 1958.

Jerry graduated from The University of Texas at Austin in 1962 with a BA in history. He went on to graduate from U.T. Law in 1964.

Jerry was past President of the Texarkana Bar Association and a past Board member of CASA. Bill E. Ross of Blytheville died October 1, 2018, at the age of 78.

He was a former Municipal Judge of Blytheville Chickasaw district, and a former public defender.

He graduated from Blytheville High School in 1958. He left Blytheville in 1962 to attend the University of Arkansas. Mr. Ross graduated from the University of Arkansas Law School in 1968 with a Juris doctorate Degree. Bill began his professional experience as an attorney in 1968. His professional experience included: President of Arkansas City Attorney’s Associa-

tion; Special Justice Arkansas Supreme Court; and one of the first delegates to Arkansas Bar Association House of Delegates.

Robert Luther Shults, Jr., of Little Rock died on September 11, 2018, at the age of 92. Bob was a decorated combat soldier in World War II, serving three and one-half years in the U.S. Army Infantry, including two and one-half years in France and Germany during and after the war. Always grateful for the opportunities the GI Bill gave him, he graduated cum laude from Louisiana State University in 1950. He attended Harvard Law School, where he served as an editor of the Law Review and graduated cum laude in 1953. In 1981, he was awarded an honorary doctor of laws degree by the University of Arkansas for his contributions to academic freedom. He practiced with Wright, Lindsey & Jennings (later Wright, Lindsey, Jennings, Lester & Shults) until 1965, when he and the late Edward Lester formed the firm of Lester & Shults. The firm evolved, with different lawyers over the years, and Bob remained a partner until his death. Active in Bar Association work, Bob served as President of the Pulaski County Bar Association in 1971-72 and Chairman of the Executive Committee of the Arkansas Bar Association in 1968-69. He was a Fellow of the American Bar Foundation and the Arkansas Bar Foundation and a member of the American Judicature Society. He received both the Arkansas Bar Association’s Outstanding Lawyer Award and the Pulaski County Bar Association’s Outstanding Lawyer Citizen Award.

Winfred Lee “Wimp” Tucker of Hot Springs died July 26, 2018, at the age of 84. He was a member of the Law Practice Management Committee of the Arkansas Bar Association.

The information contained herein is provided by the members’ obituaries.

Vol. 53 No. 4/Fall 2018 The Arkansas Lawyer

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A R K B A R 2019 EVENTS December 6-7, 2018 57th Annual Federal Tax Institute co-sponsored with ASCPA Little Rock

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