MILITARY JUSTICE PERSONNEL: Defense
Function: Right to Counsel
2008 (Transition)
United
States v. Rhoades, 65 M.J. 393 (under the Sixth
Amendment, the accused in a
criminal proceeding has the right to the assistance of counsel for his
defense;
under the UCMJ, an accused has the right to representation by military
counsel
provided at no expense to the accused, and the accused may be
represented by
civilian counsel; the right to counsel of choice under the Sixth
Amendment, as
well as under the UCMJ, is not absolute; the need for fair, efficient,
and
orderly administration of justice may outweigh the interest of the
accused in
being represented by counsel of choice; for example, disqualification
of an
accused’s chosen counsel due to a previous or ongoing relationship with
an
opposing party, even when the opposing party is the government, does
not
violate the Sixth Amendment).
United
States v. Wiest, 59 MJ 276 (we hold the military judge
abused
his discretion in refusing to grant a defense-requested continuance to
obtain a
civilian lawyer; the military judge erred by exercising an inelastic
attitude
in rescheduling appellant’s trial, where such request was predicated on
the
judge’s negative comments about appellant’s original military counsel
and
appellant’s subsequent selection of a new civilian counsel).
(the
right to
counsel is fundamental to our system of justice; it should therefore be
an
unusual case, balancing all the factors involved, when the judge denies
an
initial and timely request for a continuance in order to obtain
civilian
counsel, particularly after the judge has criticized appointed military
counsel; indeed, we have noted that the right to civilian counsel is a
most
valuable right, and that therefore a continuance should be granted at
least
after initial requests for such counsel have been made, and certainly
in a case
where appellant is unsure of his appointed military
representation).
(in
this case, the
following factors weighed in favor of the military judge granting a
defense-requested continuance to obtain a civilian lawyer: surprise -
the
request for a continuance was based on unexpected events, where
appellant was
clearly surprised by the harsh criticism of his counsel by the military
judge;
timeliness - civilian counsel requested the continuance as soon as he
was
retained, six days after the court was recessed and well before the
trial date;
good faith of the moving party - appellant had made no prior requests
for
continuance, nor was there any delay or no bad faith by appellant or an
attempt
by appellant to vex the government; availability of witness or evidence
requested - there was no showing that the witnesses would not be
available at a later date; length of continuance - the timing of this
request
allowed sufficient time to establish a date when civilian counsel would
be
available to work within the schedule of the witnesses, none of whom
were
outside the United States; and prejudice to opponent - the government
did not
establish a reason for opposing appellant’s request for a continuance;
given
these circumstances, the military judge should have granted the
continuance,
and therefore abused his discretion in failing to do so).
(where
a military
judge denies a continuance request made for the purpose of obtaining
civilian
counsel, prejudice to the accused is likely).
United
States v. Rodriguez, 60 MJ 239 (regarding
the right to counsel, the principles enunciated by the Court in other
post-trial settings also apply to DuBay fact-finding
hearings).
(the absence of counsel at a DuBay hearing
will
effectively result in denial of the right to counsel; however, if
substitute
counsel who has the legal responsibility to protect the accused’s
post-trial
interests is present, it cannot be said that the accused has been
deprived of
his right to counsel).
(error by substitute counsel of serving without
first having
entered into an attorney-client relationship could be tested for
prejudice, and
the appropriate test for prejudice is that prescribed in Article
59(a)).
(although accused’s detailed defense counsel
improperly
severed the attorney-client relationship with accused between second
and third
sessions of DuBay
hearing, and substitute counsel proceeded to
represent
accused during the final two sessions of hearing without establishing
an
attorney-client relationship, accused was not prejudiced, considering
that
substitute counsel represented accused’s cause zealously and that
questions
assigned for DuBay consideration did not relate directly to
matters
within accused's personal knowledge).
2003
United
States v. Dorman, 58 MJ 295 (individuals accused
of crime
shall have the assistance of counsel for their defense through
completion of
their appeal; this right includes the right to the effective assistance
of
counsel on appeal).
2002
United
States v. Pinson, 56 MJ 489
(servicemembers
have a right to counsel, including the right to a lawyer appointed free
of
charge, at the pretrial stage, trial stage, post-trial stage, and the
appellate
stage, and a concomitant right to confidential communications between
the
attorney and client).
2001
United
States v. Beckley, 55 MJ 15 (in the military, as
in
civilian trials, the right to counsel is not absolute; under RCM
506(c),
defense counsel may be excused "with the express consent of the
accused,
or by the military judge upon application for withdrawal by the defense
counsel
for good cause shown).
(good cause for withdrawal of defense counsel under RCM 506(c) is
provided
by ethical standards prohibiting counsel from representing two clients
in a
substantially related matter where the interests of those clients are
materially or directly adverse, unless each client consents after being
informed of the conflict).
(where appellant’s wife was earlier represented by civilian defense
counsel’s law firm in a divorce action against appellant, and where
appellant’s
wife did not consent to that firm’s subsequent representation of
appellant on
criminal charges which bore some factual relationship to the divorce
action,
good cause existed for the withdrawal of civilian defense counsel).
(where only one party waived a conflict of interests issue, neither
the
staff judge advocate’s office nor the trial court violated the Sixth
Amendment
or Articles 27 and 38 by infringing on appellant’s choice of specific
civilian
defense counsel).
2000
United
States v. Steele, 53 MJ 274 (once
a state licensing authority has
reviewed the qualifications and admitted an attorney to practice, a
subsequent
change in bar status alone does not necessarily result in a
determination that
there has been a denial of the Sixth Amendment right to counsel).
United
States v. Knight, 53 MJ 340 (where an accused
challenges
the adequacy of his counsel’s trial representation and where he
expresses a
desire to sever his relationship with counsel, a staff judge advocate
who
becomes aware of the potential conflict of interest must notify the
defense
counsel of appellant’s complaint so that the issue of further
representation
can be resolved).
(where an accused challenges the adequacy of his defense counsel’s
trial
representation and expresses the desire to sever his relationship with
that
counsel before the convening authority, there is no knowing waiver and
substitute counsel should be appointed regardless of the accused’s
failure to
request substitute military counsel or a stated intent to hire a
civilian
lawyer).
United
States v. Tanksley, 54 MJ 169 (seizure of document
displayed on appellant’s computer screen did not infringe upon
appellant’s
right or ability to communicate with counsel, and there was no Sixth
Amendment
violation simply because otherwise privileged, confidential information
was
viewed).
1999
United
States v. McClain, 50 MJ 483 (Sixth Amendment guarantee
of the
right to effective assistance of counsel means the right to counsel who
is
conflict free; to demonstrate a violation of this right an appellant
must
establish (1) an actual conflict of interests that (2) adversely
affects the
lawyer’s performance).
United
States v. Scott, 51 MJ 326 (Sixth Amendment right to
counsel
codified under Article 27, UCMJ, applies to the pretrial, trial, and
post-trial
stages).