The issues surrounding flight surgeon, Dr. Michael Murphy have garnered a fair amount of interest and concern from flight surgeons across the country. Numerous stories and rumors abound, and there are many complex and contradicting renditions. In the spirit of honest discourse, the following factual summary is presented. (If there are any factual corrections, contrary view points or additional observations, please submit them for evaluation and/or inclusion–WWP).
Note: this web site does not express official policy of the United States Air Force or the Alliance of Air National Guard Flight Surgeons. This discourse is permitted under heading of “Conversations” which reflects viewpoints of the individual authors.
1) A military member claimed that she voluntarily underwent, 2 years earlier in 2011, a gynecologic examination which she later believed to have been unnecessary.
2) Examination of the medical record and interview of clinic personnel did not indicate that any such examination had occurred. There were no witnesses or corroborating evidence for the alleged event, although several of the accuser’s friends repeated the accusation.
3) The physician accused of performing the unnecessary examination denies that such examination occurred and such denial was confirmed by a polygraph examination. Accuser did not take a polygraph examination.*
4) The examination room in which the accuser adamantly claimed the act had taken place was actually assigned to and occupied by the female clinic commander on the day in question.
5) The accuser attempted to persuade the District Attorney to bring charges against the accused 3 years after the alleged incident; the DA did not do so.**
6) Oregon JAG, a 29 year experienced IG Investigator stated, “this investigation should have, by the preponderance of the evidence, yielded an unsubstantiated finding, and thus terminated all further inquiry.”
7) He further stated, “the investigator (OCI) further supported his founded determination stating in essence that the accuser’s story is so far-fetched that it must be true. This statement defies logic.”
8) In spite of lack of corroborating evidence, the Office of Complex Investigations (OCI) investigator asserted that the allegation was “substantiated.”
9)Military administrative adverse actions may be taken for actions that are not crimes in the civilian community, such as failing to salute a hospital administrator, having a waist over 39″, walking a mile in over 16 minutes, visiting an “off limits” bar, ect.
9) Military adverse actions may also be taken without a preponderance of evidence for wrongdoing to avoid even the perception of impropriety, for example allegedly attending the wrong kind of club or political gathering.
10) Because of a single, long-past, uncorroborated accusation, the accused physician was discharged under Other than Honorable conditions.
11) Dr. Murphy has submitted a claim in federal court to correct due process, procedural and contract errors. Muprhy Improper Procedure Claim in Federal Court_
*The District Attorney stated, “Although a polygraph is not admissible in court, Defendant has passed one with a highly regarded polygrapher.”
**The District Attorney concluded, “It would still be difficult to prove however that the physical contact was offensive at the time it happened. The victim states that it was only after she learned that PAP smears were no longer given that, retroactively, she found the touching offensive. In addition, we cannot meet our burden of proof beyond a reasonable doubt to show that the touching actually occurred. The Defendant adamantly denies it and there is no mention of it in Accusers medical records.”
Shortly after posting the above explanation, I received the following note from a highly regarded, experienced flight surgeon who has first-hand knowledge of the situation. His comments reference the implications for all physicians; his remarks are cogent and may well reflect the conclusions of other physicians if they possessed his intimate knowledge of the the issues–WWP
The physician wrote, “I have served 2 terms on a state medical board and have handled many cases of bad and inappropriate physician care and behavior. I looked very closely at this case from the beginning and each step of clear ineptitude and injustice becomes more incredulous than the prior. I have never seen a greater injustice or more absolutely false representation than the findings the OCI concluded. The findings are indeed beyond logic and indefensible. To say this was a political hanging with ZERO truth or defensible findings is an understatement. There were a multitude of facts that not only questioned the accusation but CLEARLY supported the absolute impossibility of this occurring.
His case represents a GROSS INJUSTICE that needs to be immediately corrected to restore our faith in our service and in our leaders.
Physicians in the ANG need to fear for not just for their own military careers, but even more so for their civilian careers. Our lives as we know it may be destroyed at any moment by a single unfounded accusation, as happened with Dr. Murphy.
This case and the outcomes for Dr. Murphy are an affront to fairness, justice and due process; the end result is tragedy beyond measure.
Thereafter, I received the following correspondence from a well-respected civilian law enforcement officer who was Security Forces assigned to review evidence and interview the witnesses:
The officer wrote,“I remember many items, including highlights of the video. I think one of the biggest points to consider is that at the time of the investigation and interviews, it was a peak time in the media about military sexual assaults. There was a lot of press, and even Senator John McCain was on the news speaking out about it. I think that had some weight in this case.
“In my opinion, I believe the military was taking on every case with a one-sided judgement. In all reality, fair or not, based on the hearing instructions, all the AF had to do was to prove that the Defendant and the Accuser had contacted each other the day that the alleged event took place, which they were able to do based on the medical record. There was no burden to establish that the alleged event had actually taken place for the OCI Investigator to conclude that the allegation was “substantiated.”
“By the time the Office of Complex Investigations interviewed the Accuser, she had a chance to rehearse her story numerous times. Being we were not able to interview her, I couldn’t tell about motive or any points of possible deception in her story.
“Interviewing victims that claim sexual assault is a slippery slope regardless if it’s in the military or civilian courts. We rely on physical evidence, timelines and supporting statements. In this case, there was no physical evidence and numerous contradicting statements. The people that came to the defense did well. I think Chief F. was the best witness.
“Even on the civilian side we can’t ask victims to submit to a polygraph exam. In most cases, if a suspect takes the polygraph and it confirms the Defendant’s denial as it did in this case, the district attorney won’t file. In this case the DA even stated the case didn’t meet the burden of proof need to take it to trial. And even if the accusation were proved to be true, it would have been judged a misdemeanor at worst.
“One thing that sticks out in the video is the Accuser’s being upset that the Defendant didn’t invite her to pick cherries at his home. That was very odd that after learning about allegedly being sexually abused, she would be upset you didn’t include her at an event at your home.
“During the hearing, even though the Defendant testified on his own behalf, they still portrayed him to be the bad guy. The OCI Investigator seemed to be more prosecutor than an independent fact finder; every little thing had some weight against the Defendant, even down to implications of failure to wear his uniform properly.
“The government not granting the travel for the investigators from the OCI or compelling anyone, like the clinic commander, to testify at the discharge hearing had a huge prejudicial, negative impact. But, being it was not a criminal case they got away with it.”
Several flight surgeons have expressed deep reservations about the conduct of the Air Force Administrative Judicial Process and the apparent bias of the OCI Investigator in this case but they have also expressed fear of retribution and adverse effect on their careers if they speak out.. Below is an example of such correspondence–WWP
“The Office of Complex Investigations (a euphemism for sexual accusation prosecutors) is charged with creating an environment that encourages the reporting of sexual allegations, even with no supporting evidence. The OCI is charged to believe the accused unless there is clear evidence that the accusation is untrue. The public incorrectly assumes that the OCI process is unbiased and only fact-finding–the investigator acquires the facts and then transmits the information to the command structure or tribunal. But the OCI goes much further than investigator or prosecutor, to also becomes the judge and jury when it concludes that an accusation is “substantiated” even if there are no witnesses, physical evidence, corroborating testimony or when there is substantial evidence to question the accuracy of the accusation.
In this case, a fair statement by the OCI investigator would have been “allegation neither proved, nor disproved–allegation lacked corroboration.” Instead, the investigator inserted his biased opinion that the allegation was “substantiated” based only upon his believing the accuser and the implausibility of the accusation, while discounting evidence against the accusation. This really painted the leaders into a box.
The OCI assertion that the accusation was “substantiated” placed the command structure in a difficult, untenable situation even though corroborating evidence was lacking. 1) If command took no against the accused physician, they would have been accused of “sweeping it under the rug and would have most likely resulted in the end of their military careers. 2) If the accused physician were sent for court martial, the military would have then had the burden of proof to present, beyond a reasonable doubt that such action had occurred. Because of a lack of evidence, the prosecution would have certainly lost and it would have been seen as a “witch hunt for political correctness.” 3) The military commanders who were painted into a box by the OCI opinion found an escape by discharging the physician administratively under “other than honorable conditions.” This removed the requirement of proving the accusation while still allowing the physician to be punished to satisfy those who would otherwise shout, “cover up.”
In this Stalineske case, the accuser did not have to prove guilt, but rather that accused had to prove innocence– impossible to accomplish and totally contrary to the US system of justice. “Innocent until proven guilty” did not apply in this case. Enough said. In each of the cases below, note the similarities to the Michael Murphy case–very aggressive prosecutor, a presumption of guilt, no evidence, only accusations. Please post for your readers the following documents: