MISCELLANEOUS MATTERS: Professional Responsibility / Ethics: Generally

2009 (September Term)

United States v. Roach, 69 M.J. 17 (a recusal of a judge means the judge may not preside over any subsequent proceedings in the case or perform any other judicial actions with respect to it; once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused; when a judge is recused, the judge should not take action to influence the appointment of his or her replacement).


(the chief judge of a court of criminal appeals may not recommend to the JAG an acting chief judge for a case in which the chief judge is recused; by taking a procedural step after his recusal, at a minimum, the chief judge’s actions create the appearance of directly impacting a case from which he was recused). 


United States v. Rodriguez-Rivera, 63 M.J. 372 (prosecutorial misconduct is generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon).

(in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness).

(there may be a case, based upon the dialogue between the parties and the military judge, where there is a sound basis in the record for concluding that there was a clear, common understanding between the military judge and the parties as to sequestration, without issuance of a formal order; in such a case, violating that clear understanding could constitute prosecutorial misconduct; in this case, there was neither a formal nor a clearly understood sequestration order, and a sequestration order could not be implied based on the judge’s denial of the government’s request to allow one or both of the parents to be present when the child testified; unless the record demonstrates that witnesses were to be sequestrated, the prosecution cannot be found to have intentionally committed misconduct; as a result, there was no prosecutorial misconduct based on an allegation that the trial counsel intentionally violated the military judge’s sequestration order by allowing the parents of the child to discuss the substance of the child’s testimony during a recess).

(there was no prosecutorial misconduct based on an allegation that the child victim was improperly coached by the trial counsel, the assistant trial counsel, and the child’s parents during a recess in the child’s testimony, where the trial counsel and parents did nothing more that encourage the child to tell the truth and the whole story; to the extent the military judge did have concerns about any influence the discussion during the recess may have had on the child, he mitigated that influence by allowing cross-examination of the child concerning the events during the recess and the possibility that the child was coached or coerced). 

(there was no prosecutorial misconduct arising from an allegation that the assistant trial counsel was less than candid about the discussions that occurred between him and a child witness during the recess, where a difference in perception between the assistant trial counsel and a child witness about their discussions was not a sufficient basis for finding that the assistant trial counsel was dishonest with the military judge). 

(there was no prosecutorial misconduct arising from an allegation that a government expert witness had listened to other witnesses and collaborated with the government by passing notes to the trial counsel during the trial, where the trial counsel advised the military judge that the notes the witness had passed were not written by her, but that the witness was merely relaying notes passed to the trial counsel from other people; the military judge accepted the trial counsel’s explanation, after having had the opportunity to observe the proceedings and the explanation of the trial counsel; thus, there is no basis to conclude that the military judge’s finding that the trial counsel was candid with regard to this incident was clearly erroneous). 

United States v. Quintanilla, 63 M.J. 29 (although the assistant trial counsel’s ex parte communication with the Article 32 investigating officer prior to trial was improper (violating the prohibition against certain ex parte communications), that improper conversation did not result in prejudice, particularly in light of the military judge’s finding that the conversation had no bearing on the Article 32, UCMJ, investigation).  

(any error in the assistant trial counsel sending two ex parte e-mail messages to the prospective members of the panel advising them about the trial schedule was harmless even though he wrote the e-mails with the goal of establishing favorable opinions and trust from the members; although the assistant trial counsel may have had a subjective ulterior motive in sending the e-mails, an objective reading of the e-mails did not reveal this motive; considering the extent and strength of the evidence against appellant in this case, these e-mails would not have influenced the members’ determination of guilt).  

(the ethical rule prohibiting attorneys from acting as both an advocate and a witness on the same matter was violated in this case when, during the court-martial, trial counsel testified on a motion and then argued the motion, relying on his own testimony; however, this violation was harmless where the motion was argued in an Article 39(a) session outside the presence of the members and would not have impacted the members’ findings). 

(although the trial counsel and assistant trial counsel impermissibly withheld evidence from the evidence custodian (violating the prohibition against an attorney engaging in illegal and unethical conduct), given the post-trial timing of this conduct, however, it did not prejudice appellant’s court-martial).


United States v. Brunson, 59 MJ 41 (counsel have a responsibility to aggressively represent clients before military trial and appellate courts; if counsel fail to comply with the basic rules of this Court, they risk compromising their client’s rights and protections; attorneys must adequately protect the appellate rights of their clients, comply with the Rules of Practice and Procedure of this Court, and provide competent and timely appellate representation)

(this Court has adopted the ABA’s Model Rules of Professional Conduct as the rules of conduct for members of the Bar of this Court; those Model Rules require that counsel shall act with reasonable diligence and promptness in representing a client; the comment to Rule 1.3 provides that a lawyer’s work load must be controlled so that each matter can be handled competently).

(appellate practitioners should be on notice that this Court will not countenance further disregard of the Rules of Court and case law; in so ruling, this Court emphasizes that disregard for the Rules besmirches the image of military justice; this Court does not condone disregard of the Rules by accepting late filings when the delay seems to be the result of neglect and carelessness, and it shall consider appropriate sanctions in the event of flagrant or repeated disregard of the Rules).

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