MILITARY JUSTICE PERSONNEL: Defense Function: Right to Counsel
2017 (October Term)
United States v. Hennis, 77 M.J. 7 (the Army’s capital litigation regulation provides a guideline for the appointment of a suggested trial defense team, not a suggested appellate defense team, and by its own terms is hortatory, rather than mandatory and thus does not create a binding right).
(the Military Justice Act of 2016 substantially amends Article 70, UCMJ, by requiring to the greatest extent practicable, in any capital case, at least one defense counsel be learned in the law; however, the “to the greatest extent practicable” language makes plain that there is no statutory requirement for learned counsel; in any event, the pending amendment to Article 70, UCMJ, applies only to future military capital cases and not to appellant’s case).
2014 (September Term)
United States v. Akbar, 74 M.J. 364 (an accused has the right to conflict-free legal representation; however, he may waive this right so long as it is knowing and voluntary).
(as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases).
2008 (September Term)
United States v. Wiechmann, 67 M.J. 456 (the accused has the right to be represented by counsel during an investigation under Article 32, UCMJ, and before a general or special court-martial; in the military justice system, the right to counsel includes the right to counsel detailed under Article 27, UCMJ; the right to the services of detailed counsel is substantial, and extends to both the pretrial and the trial proceedings).
(RCM 705, the MCM rule dealing with pretrial agreements, underscores the vital role of counsel at the pretrial stage of the proceedings by providing that government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel; the rule further provides that a pretrial agreement shall be signed by the accused and defense counsel, if any).
United States v. Lee, 66 M.J. 387 (in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; one element within this Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to choose who will represent him; further, counsel provided to or retained by the accused must provide reasonably effective assistance; third, where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest; finally, it follows that where assistance of counsel has been denied entirely, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary).
(an accused may waive his right to conflict-free counsel; however, waivers must be voluntary, and they must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences; courts will indulge every reasonable presumption against the waiver of this right).
United States v. Brooks, 66 M.J. 221 (in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; the Supreme Court has extended the right to counsel to first appeals guaranteed as a matter of right; in military jurisprudence, an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and the CAAF by appellate counsel appointed under Article 70, UCMJ).
(necessarily included in the Sixth Amendment right to counsel is the right of an accused to confer privately with his attorney).
(not all impingements on attorney-client communication constitute per se violations of the Sixth Amendment right to counsel thereby requiring reversal; per se violations are limited to structural errors and require no proof of prejudice for reversal).
(appellant’s claim that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel did not fall within the category of structural error, where appellant was not deprived of all opportunities to speak with his appellate counsel and the degree of prejudice could be assessed; appellant could not articulate what he deleted from the communications with his counsel and his silence suggested that little, if anything, was chilled from his attorney-client conversations; similarly, a refusal to make certain undefined communications, especially when the appellant had ample alternative opportunities to speak freely with counsel, did not, as a general matter, constitute prejudice).
(even assuming some interference with his attorney-client relationship, appellant did not establish that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel, absent a showing of prejudice; appellant did not cite what issues he wanted to raise before the CCA but was unable to do so because of the chilling effect the actions of brig officials had on his attorney-client communications).
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).
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).
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).
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).
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).
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).
States v. Scott, 51 MJ 326 (Sixth Amendment right to
codified under Article 27, UCMJ, applies to the pretrial, trial, and