2008 (Transition)
2006
United
States v. Miller, 63 M.J. 452 (chief reliance
must be placed on defense
counsel to inform an accused about the collateral consequences of a
court-martial conviction and to ascertain his willingness to accept
those
consequences).
(given the
plethora of sexual offender
registration laws enacted in each state, it is not necessary for trial
defense
counsel to become knowledgeable about the sex offender registration
statutes of
every state; however, trial defense counsel should be aware of the
federal statute
addressing mandatory reporting and registration for those who are
convicted of
offenses within the scope of this statute, and counsel should also be
aware of DoD
Instr. 1325.7, which identifies offenses that trigger mandatory sex
offender
reporting; the operation of this statute and instruction may have an
impact on
an accused’s decisions both before and at trial, and on an accused’s
legal
obligations after conviction).
(a prospective
rule is appropriate to address
the importance of trial defense counsel explaining the sex offender
registration
requirement to an accused; for all cases tried later than ninety days
after the
date of this opinion, trial defense counsel should inform an accused
prior to
trial as to any charged offense listed on DoD Instr. 1325.7, Enclosure
27:
Listing Of Offenses Requiring Sex Offender Processing; trial defense
counsel
should also state on the record of the court-martial that counsel has
complied
with this advice requirement; while failure to so advise an accused is
not per
se ineffective assistance of counsel, it will be one circumstance an
appellate
court will carefully consider in evaluating allegations of ineffective
assistance of counsel).
2003
United
States v. Baker, 58 MJ 380 (the initial
actions
taken by a competent defense counsel in preparing diligently for trial
are
relatively non-controversial; at the outset, the attorney will discuss
with the
client the relative benefits of testifying versus relying on the
privilege to
remain silent; in the course of such a discussion, the attorney will
ascertain
from the client the nature of any proposed testimony; the attorney will
then
conduct a reasonable investigation to identify potential areas of
vulnerability
to cross-examination or rebuttal; in the course of such trial
preparation, the
attorney may identify conflicts between the proposed testimony and
other
evidence, including prior statements to the attorney by the client;
such
conflicts do not necessarily mean that the proposed testimony is false;
it may
well be that the client was reluctant to be candid with the attorney
until a
degree of comfort was established in the relationship; under the
ethical
obligations of competence, diligence, fairness, and candor, the
attorney cannot
close his or her eyes to the possibility that the proposed testimony is
false;
the attorney must conduct an appropriate investigation to ascertain
whether the
proposed testimony is false; even if the client asserts that he or she
wants to
present false testimony to the court, a diligent attorney will
recognize that
such a statement may reflect the pressures of a looming trial, and will
not
accept it at face value without making a reasonable inquiry).
(when an attorney perceives that a client’s prospective testimony
may be
false, the attorney will face conflicting pressures in terms of the
client’s
constitutional right to the effective assistance of counsel, ethical
duties
toward the client, ethical duties toward the court, and applicable
statutory
and regulatory procedures; despite substantial attention to this
problem by
scholars, practitioners, and judges, there is considerable disagreement
as to
the steps that should be taken by counsel and judges to reconcile these
competing interests; the Supreme Court, in its leading decision on
these
issues, declined to provide detailed guidance with respect to the
weight to be
given to recognized canons of ethics, the standards established in
statutes or
professional codes, and the Sixth Amendment; although we have touched
upon
these matters in earlier cases, we have not issued definitive holdings
regarding the propriety of any particular approach).
(the standard an attorney should apply in determining whether a
client's
proposed testimony is false for purposes of triggering any ethical
obligations
is that of "a firm factual basis"; that standard is sufficient to
ensure that counsel has conducted an adequate inquiry prior to
initiating any
action under the ethical standards).
(if a client persists in a desire to provide what the attorney has
determined to be false testimony, there are three alternatives
available to
counsel: (1) the first view is that the attorney should not have any
involvement with a client who intends to taint the proceeding through
the
presentation of false testimony; under this view, if the client
persists in the
desire to testify falsely, the attorney should ask the court for
permission to
withdraw from the representation; (2) the second view is that
withdrawal is too
disruptive and simply foists the issue on the next attorney; therefore,
the
relationship should not be severed completely, but the client should
not have
the assistance of counsel during the presentation of testimony; under
this
approach, the attorney provides non-specific notice to the court that
the
client will testify in free narrative form without the benefit of
questions
from defense counsel, and counsel does not refer to the testimony
during
closing argument; and (3) the third view is that the free narrative
approach
violates attorney-client confidentiality because the unusual format of
the
testimony signals to the judge or jury that the client is not telling
the truth;
this view focuses on the confidentiality of the attorney-client
relationship,
the client’s right to assistance of counsel, and the client’s right to
testify;
under this approach, if the client persists in the desire to testify,
the
attorney should provide unqualified assistance, treat the matter in the
same
fashion as any other evidence, and give no indication of concerns about
perjury
to the court or opposing counsel).
(the first and third options
available to an attorney faced with a client who may commit perjury at
trial –
withdrawal of counsel and disregard of the perjury - each attempt to
address
the issue by giving primacy to one set of interests; the second
approach –
testimony without the assistance of counsel – attempts to balance the
competing
interests; given the conflicting interests at stake, none of the
alternatives
is completely satisfactory, but the free narrative approach offers a
reasonable
opportunity to achieve a fair balance).
(we have identified a number of steps that counsel and military
judges may
consider taking to reduce the potential for confusion and error in
situations
involving potential client perjury; at the outset, the defense counsel
should
conduct an appropriate investigation into the validity of evidence that
is
likely to be offered at trial, including prospective testimony by the
accused;
if such an investigation provides the attorney with a firm factual
basis for
determining that the prospective testimony is false, the attorney
should have a
discussion with the client that reviews the facts, the basis for the
attorney’s
concern, and the potential consequences for the accused if the client
persists
in a desire to provide the testimony; the advice should cover
consequences in
terms of the obligation to tell the truth, pertinent criminal
sanctions,
tactical considerations at trial, and the effect of testimony in a free
narrative form; if the accused persists, the attorney should request an
on-the-record ex parte proceeding before the military judge, which
would be
attended by the accused; a motion to withdraw should not be made or
granted in
any case unless the circumstances as a whole have produced such an
irreconcilable conflict between counsel and the accused that effective
representation no longer is possible; at the ex parte proceeding, the
attorney
should advise the military judge that the client wishes to testify and
that the
client will testify in free narrative form; the military judge should
not
inquire into the reasons, but should: (1) remind the attorney of the
obligation
to conduct an appropriate investigation that demonstrates the basis for
the
concern; (2) ensure that the accused understands the consequences of
testifying
in free narrative form; (3) ask the attorney and the client to have a
further
conversation during a recess prior to making a final decision as to how
to
proceed; and (4) direct the attorney to prepare a memorandum describing
the
attorney’s investigation, factual concerns, and advice provided to the
accused;
if, after such a recess, the accused decides to proceed with the
testimony, the
attorney and the accused should notify the military judge of that
decision in
an ex parte proceeding; prior to the conclusion of the trial, the
military
judge should ensure that defense counsel submits a copy of the
memorandum under
seal; the document should be attached to the record as a sealed exhibit
and
should remain sealed, except to the extent release is directed during
appellate
review upon an appropriate showing and subject to appropriate
protective
orders; because the actual circumstances – including service
regulations and
potentially applicable state bar ethical rules - may require counsel to
consider variations in the suggested standards for assessing whether
the
evidence is false and related procedures for addressing the matter at
trial, we
emphasize that these are available measures that may prove useful at
trial, and
that we are not establishing mandatory requirements at this time; in
the course
of adapting these measures to the needs of a particular case, the
military
judge and counsel for the parties should keep in mind their respective
responsibilities with regard to the truth-seeking purposes of a trial,
consistent with applicable constitutional, statutory, and ethical
considerations).
United
States v. Dorman, 58 MJ 295 (trial defense counsel
maintains a duty of loyalty to an appellant during appellate review;
the
loyalty of defense counsel to his client - before, during, and after
trial - is
a cornerstone of military justice; thus, even after trial, the trial
defense
attorney should and can with honor be of much more assistance to his
client and
to the court; in short, trial defense counsel maintains a continuing
obligation
to the client beyond the trial’s conclusion, which includes providing
reasonable assistance where permitted and refraining from acting in a
manner
inconsistent with the client’s right to effective assistance of counsel
on
appeal; implicit in both the right to appeal and counsel’s duty of
loyalty is
the understanding that trial defense counsel will not interfere with
appellate
defense counsel’s representation, and to the extent necessary and
possible,
will assist appellate defense counsel in preparing the appeal).
(trial defense counsel’s post-trial obligations must be consistent
with the
ethical duty of confidentiality; a lawyer shall not reveal information
relating
to the representation of a client unless the client gives informed
consent, the
disclosure is impliedly authorized in order to carry out the
representation, or
the disclosure is otherwise permitted by ABA Model Rules of
Professional
Conduct 1.6; a fundamental principle in the client-lawyer relationship
is that,
in the absence of the client’s informed consent, the lawyer must not
reveal
information relating to the representation).
(pursuant to trial defense counsel’s continuing obligation to the
client and
the corresponding duty of confidentiality, we hold that trial defense
counsel
must, upon request, supply appellate defense counsel with the case
file, but
only after receiving the client’s written release; if trial defense
counsel
believes that disclosure of particular information from the file would
entail a
material risk to the client, counsel should provide an explanation to
the
client about the material risks of and reasonably available
alternatives to the
proposed course of conduct; this protocol supports trial defense
counsel’s
continuing obligation to the client by providing appellate defense
counsel with
information counsel may need to be an effective appellate advocate; at
the same
time, the duty of confidentiality is preserved, as the client must
authorize
the case file’s release).
(to be sure, there are exceptions to this general rule [that trial
defense
counsel must, upon request, supply appellate defense counsel with the
case
file, but only after receiving the client’s written release] which may
require
withholding the release of some information; for example, if
information has
been provided to a lawyer on the promise that it will be kept in
confidence -
even with respect to his client - the confidentiality of that
information must
be maintained; moreover, to the extent that a statute or court order
limits
access to specific persons or entities in a manner that has the effect
of
excluding appellate defense counsel, trial defense counsel is subject
to the
limitations and procedures governing access under the statute or order;
such
information might include matter designated by the government as
classified and
documents governed by protective orders; in such a situation, appellate
defense
counsel must obtain access through the procedures established by the
statute or
court order; finally, if for some reason, cost to the attorney is
involved in
reproducing documents or providing access, the client must provide for
reimbursement of those costs).
2002
United
States v. Gilley, 56 MJ 113 (responsibility for
tactical
and strategic post-trial decisions are within the control of counsel
who must
make an evaluative judgment on what items to submit to the convening
authority
and to so advise the client).
United
States v. Burt, 56 MJ 261 (To be an
effective
advocate, trial defense counsel is required to discuss with an accused
the
various components of a military sentence, i.e., confinement,
discharge,
reduction in rank, and forfeitures, and after such counseling and in
accordance
with his client’s wishes, zealously represent his or her client).
(effective advocacy requires an astute, reflective evaluation of a
set of
circumstances with rational, tactical trial choices flowing therefrom.
2001
United
States v. Bolkan, 55 MJ 425, (the ethical
responsibility
to diligently represent an accused at trial requires a wide range of
professional decisions, including what evidence to present and what
arguments
to make; however, the accused has control of the plea, pretrial
agreement,
questions as to forum, right to testify, and whether to appeal).
1999
United
States v. Reist, 50 MJ 108 (any issue as to whether
trial
counsel is so determined to convict and punish an accused that he
became an
“accuser” is waived by that accused’s failure to raise the issue at
trial).
(failure
to object to
improper
argument constitutes waiver of the objection).
(argument asking judge to minimize the effects of accused’s guilty
pleas and
characterizing accused’s actions as “cowardly criminal conduct of a
sexual
pervert” did not indicate animus, but were permissible hard blows that
may be
struck by trial counsel during sentencing argument).
United
States v. Carpenter, 51 MJ 393 (it is improper argument
for a
prosecutor to ask the court members to infer guilt because an accused
has exercised
his constitutional rights; a prosecutor treads on dangerous ground [i.e.,
the rights to be present in court and confront witnesses] when he
comments on
an accused’s ability to observe the witnesses and shape his testimony).