IN THE CASE OF
UNITED STATES, Appellee
Billy E. CAIN, Sergeant
Crim. App. No. 9800797
EFFRON, J., delivered the opinion of the Court, in which GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a dissenting opinion.
For Appellant: Captain Rob W. MacDonald (argued); Colonel Robert Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson G. Lambert (on brief); Lieutenant Colonel E. Allen Chandler, Jr., Major Imogene M. Jamison, and Captain Mary E. Card.
For Appellee: Captain Edward E. Wiggers (argued); Colonel Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and Major Natalie A. Kolb (on brief).
Military Judge: J. J. Smith
This opinion is subject to editorial correction before final publication.
Judge EFFRON delivered the opinion of the Court.
a general court-martial composed of a military judge sitting alone,
was convicted, pursuant to his pleas, of indecent assault (two
in violation of Article 134, Uniform Code of Military Justice
UCMJ], 10 U.S.C. § 934 (2000). He was
sentenced to a dishonorable discharge, confinement for five years,
of all pay and allowances, and reduction to Private E-1.
Pursuant to a pretrial agreement, the
convening authority approved a sentence providing for a dishonorable
24 months’ confinement, forfeiture of all pay and allowances, and
Private E-1. The Court of Criminal
Appellant’s petition, we granted review of the following issues:
I. WHETHER APPELLANT WAS DENIED THE FUNDAMENTAL RIGHT TO CONFLICT FREE AND EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE LEAD DEFENSE COUNSEL AND APPELLANT ENGAGED IN A SECRETIVE HOMOSEXUAL RELATIONSHIP.
II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT APPELLANT’S SEXUAL RELATIONSHIP WITH HIS LEAD DEFENSE COUNSEL DID NOT CREATE A CONFLICT OF INTEREST DENYING APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL.
For the reasons set forth below, we conclude that Appellant did not receive effective assistance of counsel and reverse.
A. COURT-MARTIAL PROCEEDINGS
1. Assignment of defense counsel to represent Appellant
In October 1997, Appellant was charged with three specifications of forcible sodomy under Article 125, UCMJ, 10 U.S.C. § 925 (2000). The charges alleged that the offenses occurred between 1993 and 1995.
the time of the first charged offense, Appellant was assigned to the
Officer Training Corps (ROTC) Department at
military justice chain of command over Appellant included his brigade
authorities began an investigation into similar charges in 1995. The brigade commander at
to Appellant’s reenlistment, a new brigade commander was assigned to
Appellant submitted his allegations against the commander and executive
officer, military authorities decided to reopen the investigation into
charges against Appellant that had been dismissed by civilian
authorities. In the meantime, the brigade
relieved, but the renewed investigation into Appellant’s activities
apace. Charges were preferred against
special court-martial convening authority appointed an investigating
under Article 32, UCMJ, 10 U.S.C. § 832 (2000), to look into the
allegations. The Article 32 hearing was
January 1998, Appellant was assigned temporarily to
2. Pretrial motions
In February and March, the defense filed two motions to dismiss the case on procedural grounds. The first challenged the delay in bringing the case to trial. See U.S. Const. amend. V (due process) and Rule for Courts-Martial 907 [hereinafter R.C.M.] (speedy trial). The military judge denied the motion. The defense filed a petition for extraordinary relief in the United States Army Court of Criminal Appeals on the same grounds, which was denied without prejudice to consideration of the matter during further proceedings.
The second motion alleged selective prosecution in violation of Appellant’s due process and equal protection rights. See U.S. Const. amend. V. The motion noted that civilian authorities had dismissed the underlying charges against Appellant; that military officials knew of the charges when Appellant was permitted to reenlist in April 1996; that the charges were resurrected because the command believed that Appellant was homosexual; and that the charges were filed in retaliation for Appellant’s “whistleblower” complaint against the command. The military judge denied the motion.
3. The plea agreement
In mid-May, the defense entered into negotiations with the Government, which resulted in a pretrial agreement. Appellant agreed to plead guilty to two specifications of indecent assault in lieu of two of the forcible sodomy specifications. The convening authority agreed to direct the trial counsel to dismiss the remaining forcible sodomy specification and to disapprove any sentence greater than a dishonorable discharge, 24 months’ confinement, forfeiture of all pay and allowances, and reduction to Private E-1.
At a court-martial session on June 2, Appellant entered pleas consistent with the pretrial agreement. The military judge conducted a detailed inquiry into the providence of Appellant’s pleas. After concluding that the pleas were provident, the military judge entered findings consistent with those pleas, and sentenced him to a dishonorable discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to Private E-1.
B. POST-TRIAL DEVELOPMENTS
1. Defense counsel's suicide
Two weeks after
trial, a senior officer in the
Army Trial Defense Service (TDS) visited
Prior to meeting with Major S, the senior TDS officer visited the Staff Judge Advocate (SJA) of the XVIII Airborne Corps. The SJA showed the senior TDS officer a letter that had been sent to the convening authority by Appellant's parents. The letter, dated four days after the conclusion of trial, alleged that Major S had pressured the Appellant for sexual favors.
a June 18 meeting with the senior TDS officer, Major S asked if there
potential delays that might affect his reassignment.
In response, the senior TDS officer informed
Major S of the allegations made by Appellant’s parents.
Major S, who was upset, denied the
allegations. He expressed concern that a
long delay could cause the cancellation of his reassignment to
the next morning, Major S took his own life.
In a package of materials prepared for his personal attorney,
left a tape recording made shortly before his death.
Although the recording did not provide
detailed information about his relationship with Appellant or his
lead defense counsel, it contained the following statements:
I fully deny that I ever forcibly had sex with [Appellant] . . . .
. . . .
My suicide is not an admission of guilt . . . .
. . . .
I want you to know that my death is not an admission of any of the charges against me . . .
. . . .
Concerning [Appellant’s] parents' allegation, that I forced their son to have sex with me, the allegation is
preposterous . . . .
2. Assignment of a new defense counsel and the request for a post-trial inquiry
July, the assistant defense counsel,
Captain L, determined that he should disqualify himself from further
representation of Appellant so that counsel not connected with
On July 30, the acting SJA prepared the post-trial recommendation to the convening authority required by R.C.M. 1106. The recommendation proposed approval of the adjudged sentence as modified by the pretrial agreement. The recommendation did not discuss the allegations made by Appellant’s parents, the suicide of Major S, or any other intervening events. Pursuant to R.C.M. 1106(f), the recommendation was served on Appellant and Captain H. The defense then requested, and was granted, an extension of time to file post-trial matters.
Defense counsel filed another request on September 28, asking the convening authority to refer the matter to the military judge for a post-trial session under Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000). See R.C.M. 1102(d). The defense asserted that an inquiry by the military judge on the record was necessary to determine whether Appellant had been denied his right to effective assistance of counsel in light of alleged improper activities by Major S. In an analysis prepared for the convening authority, the SJA noted that the defense team had secured a favorable outcome for Appellant, that the asserted improper relationship had not created an actual conflict of interest, and that a post-trial hearing would not serve any useful purpose in the absence of specific allegations by the defense of ineffective representation. In accordance with his SJA’s recommendation, the convening authority rejected the request for further proceedings before the military judge on November 2.
On December 8, the defense submitted a post-trial memorandum under R.C.M. 1105 and 1106(f) for consideration by the convening authority. The memorandum emphasized the defense's continuing objection to the Government's refusal to release information regarding the events surrounding Major S's suicide. In addition, the defense contended that Appellant had not received effective assistance of counsel and that the deficiencies in representation rendered his guilty pleas improvident. The defense asked the convening authority to order a new trial. In addition, the defense proposed three alternative remedies: (1) issuance of an administrative discharge of Appellant in lieu of approval of the court-martial proceedings; (2) referral of the matter for review by the military judge in a post-trial session under Article 39(a); or (3) clemency through a reduction in sentence to time served, emphasizing a post-trial diagnosis of Appellant as HIV-positive.
The SJA advised the convening authority that the allegations of legal error were without merit and that the case did not warrant either corrective action or clemency. On December 11, the convening authority adopted the SJA’s recommendations and approved the sentence as modified by the pretrial agreement.
3. The order for an evidentiary hearing
the next two years, Appellant continued to challenge the representation
received at trial. On October 26, 2000,
the Army Court of Criminal Appeals ordered an evidentiary hearing
pursuant to United
States v. DuBay, 17 C.M.A. 147, 37
(1967). The DuBay
hearing was held on
C. THE PERSONAL AND PROFESSIONAL RELATIONSHIP
BETWEEN MAJOR S AND APPELLANT
1. The sexual relationship
Before he assigned himself to represent Appellant, Major S was aware of Appellant’s homosexuality. According to Appellant, Major S had assisted him on another matter six years earlier. The assistant defense counsel at trial, Captain L, testified at the DuBay hearing that it was not unusual for Major S to involve himself in a case of this type because Major S was very interested in cases involving sexual misconduct or sex of any kind.
S initiated a sexual relationship with Appellant at the very outset of
attorney-client relationship in the present case. In
the fall of 1998, Appellant traveled to
to referral of charges for trial by general court-martial, Appellant
that he was being transferred temporarily to
In addition to his official duties, Appellant performed errands for Major S and frequently drove him to and from his home. On more than one occasion, they engaged in sexual activity during these drives. Another sexual encounter occurred in the TDS office. Although the military judge presiding at the DuBay hearing expressed skepticism as to some of Appellant’s testimony, he nonetheless concluded that Major S engaged in six or seven acts of sodomy with Appellant during the period in which he served as counsel in the present case.
Major S did not manifest his homosexual activity to his colleagues. At the DuBay hearing, the judge advocate who served as trial counsel at Appellant’s court-martial characterized Major S as “one of the last people I would think” was a homosexual. The assistant trial counsel at Appellant’s court-martial described Major S as “a man’s man” who “during the course of plea negotiations, . . . described . . . homosexual behavior in a less than favorable light . . . .” The assistant trial counsel added that “if you were to have asked that question at any point during the course of this, or any other case, . . . I probably would’ve laughed you out of the room.”
2. The professional relationship
The DuBay record and the record of trial reflect various statements made by Appellant prior to adjudication of findings and sentence in which he expressed satisfaction with Major S as his attorney, often speaking in highly complimentary terms. When he approached Captain L in January to request his assistance with the case, Appellant said that Major S was doing a “great job.” Later, Captain L recalled that Appellant had stated “that he was very grateful for the work [Major S] and I were doing and that he was very happy with us.” When asked by the military judge during the providence inquiry whether he was satisfied with his attorneys, he responded in the affirmative.
The information developed in the DuBay proceeding, however, indicates that Appellant had significant misgivings about Major S throughout the court-martial process. Early in December 1997, Appellant contacted Mr. C, who worked on the staff of an organization providing assistance to service members affected by military policies related to homosexuality. Because the organization did not directly represent persons before courts-martial, Mr. C referred Appellant to a civilian lawyer, Attorney W. Mr. C also contacted Attorney W directly and advised her that Appellant appeared to be “distraught about the nature of his relationship” with Major S. Mr. C also told Attorney W that when he suggested to Appellant that he report his concerns about Major S to the appropriate authorities, Appellant “expressed great fear of potential consequences should he expose Major [S’s] misconduct.”
Appellant contacted Attorney W per Mr. C’s recommendation. Attorney W did not discuss the underlying court-martial charges with Appellant, confining the conversation to “the problem in his relationship with defense counsel, Major [S].” According to Attorney W, Appellant “was extremely tentative in tone, his voice quavered, and he rambled. He described himself as frightened and depressed.”
Appellant told Attorney W that Major S had a reputation as “an extremely talented defense attorney.” Appellant “believed that no one but Major [S] could help him be exonerated by the court.” Appellant added that Major S had told him that he “would receive a very long prison sentence if he, Major [S], were not his defense counsel.”
According to Attorney W, Appellant was torn by conflicting emotions. On the one hand, the sexual relationship initiated by Major S, who was married and had a son, “caused him a great deal of distress, anxiety, and fear.” On the other hand, “he was fearful of discontinuing the sexual relationship or reporting it because of his entrenched belief that he would spend a lengthy time in prison without Major [S] as his defense attorney.”
Attorney W informed Appellant that Major S’s actions were “unethical and illegal” and that the sexual contact “was potentially criminal under Articles 125 or 134 . . . , whether related to sodomy or indecent acts.” She expressed concern “that this improper relationship could impair [Major S’s] objectivity with regard to his representation” of Appellant.
Appellant “continued to plead that he believed that he would be unable to ‘survive’ this court without the assistance of Major [S] and that he would simply find himself with inferior counsel were he to report Major [S].” Attorney W attempted to convince Appellant that he should seek new counsel, even if he did not report the misconduct of Major S to the authorities, but Appellant declined this advice. Appellant “reiterat[ed] his complete trust and dependence on [Major S’s] legal skills, [and] he informed [Attorney W] that he did not believe he could take the risk of abandoning his [defense] counsel.” According to Attorney W, “[i]t was apparent to me from my own experience as counsel and my conversation with him that he was incapable of rejecting [Major S’s] professional services or his inappropriate advances because of the deep need of [Appellant] to believe his defense counsel could ‘save’ him.”
Subsequent to his contact with Attorney W in December, Appellant expressed concern about his representation during the initial pretrial sessions of his court-martial. At the first pretrial session on January 15 -- well after Major S initiated sexual activity with Appellant -- the military judge provided Appellant with the standard advice as to his counsel rights, and inquired as to who would represent him. Appellant responded:
I would like to retain Major [S]; but, due to the serious[ness] of the charges, I also -- I am new to the area, like I said. I just -- I just got here basically -- here this morning; and, if I had the means -- that I’d also like to pursue a civilian counsel and have that right to look for that civilian counsel. Like I said, I am not from here. I am not familiar with the area or the legal people who are out there. So, I would like to retain, at the time being, Major [S], but I want the election to seek out legal, civilian counsel.
He then focused on the fact that the prosecution had assigned two judge advocates to the case:
-- if -- if the government also has two
-- two prosecutors, I would ask that -- I’ve seen the case load, sir. I
some concerns that the defense counsel here on -- on Bragg -- being
assigned attorneys that they have present -- I would -- I do not feel
would get the full benefit of a -- of a government defense, with this
load. This is a [sic] serious charges; and if this is being the case, Major [S]
-- I know
he is overloaded. I -- like I said, I
may be from
The military judge responded:
I can assure you that you would get a
first class representation from the defense office here at
The military judge then directed Major S to assist Appellant in finding a civilian counsel.
Shortly thereafter, Major S met with a civilian lawyer, Attorney T, to discuss an unrelated case. Major S asked Attorney T if he would consider talking to Appellant. According to Attorney T, Major S stated that the case was “enormously complicated,” adding that he needed “extra help,” particularly in terms of investigating events in New England, as well as with negotiations with the convening authority aimed at having the charges dropped based upon unlawful command influence.
Attorney T met with Appellant on the evening of January 21 to discuss representation of Appellant at his court-martial. After obtaining assurances from Attorney T that any discussions preliminary to forming such an attorney-client relationship would be confidential, Appellant told the attorney that Major S had initiated a homosexual relationship with him shortly after Major S became his defense counsel. Attorney T told Appellant that the relationship was unethical, and that he would insist that the relationship cease if he became Appellant’s counsel. Appellant responded that Major S was working hard and doing well with the case, and that although Major S was not his “type,” the homosexual relationship had not become so burdensome that Appellant felt the need to terminate it.
Attorney T raised the possibility of disclosing the details of the illegal relationship to military officials with a view towards obtaining a dismissal of the case. Appellant responded that he did not want to anger Major S or affect his career, and emphasized the confidential nature of the information.
During further discussions the next day, Attorney T reiterated his view that the actions of Major S were unethical. He added that he could take the case only if Major S was removed from the defense team. According to the attorney, Appellant was anxious to ensure that he not tell anyone, including Major S, that Appellant had divulged the homosexual nature of the relationship. Attorney T maintained the confidence of their preliminary discussions, and did not represent Appellant at his court-martial.
As the case moved towards trial on the merits in the spring of 1998, Appellant told a fellow soldier that “he was upset over the way his case was being handled” and revealed that Major S had required sexual favors of him. When asked why he did not get another attorney, he replied that “he was between a rock and hard place . . . [He] was not happy with [Major S], but he had gone so far with [Major S] that he could not turn back.” His former roommate, in whom he also confided, described him as “distraught” and fearful of retaliation or additional charges if he revealed that he had been pressured into a sexual relationship. Appellant’s mother gave a similar account.
Appellant consistently maintained to his defense team that he would not plead guilty to forcible sodomy. He asserted that he had not engaged in any non-consensual sexual activity with the alleged victims. Major S believed that the allegations of forcible sodomy were false and also was inclined to view the case as a matter of consensual sodomy. His investigation of the case led him to conclude that there were substantial grounds for contesting the charges, taking the position that the evidence was stale, the victims had credibility problems, and there was evidence of improper bias by the command in terms of retaliation against Appellant for whistleblower activities. Until shortly before the case was resolved, he appeared intent on contesting all charges. As noted in Section I.A.2, supra, the defense twice sought dismissal of the charges on procedural grounds, which were rejected by the military judge.
In May of 1998, Captain L told Major S and Appellant that he viewed the prosecution as having a strong case, and he recommended that the defense initiate discussions with a view towards obtaining a pretrial agreement. Major S by then had alienated the prosecution to the point that he was not in a position to conduct such negotiations, so he delegated the task to Captain L. After a week of negotiations, the parties reached an agreement, and Appellant entered his guilty pleas to two specifications of indecent assault.
The military judge presiding over the DuBay proceedings found that there had been a sexual relationship between Major S and Appellant throughout the period of representation. The military judge concluded that the relationship was not coerced, that it played no role in Appellant’s decision to enter guilty pleas, and that it did not create a conflict of interest. The military judge also concluded that the defense team provided Appellant with effective counsel in terms of filing motions that challenged the government’s case, advising the Appellant about the state of the evidence, and negotiating a favorable pretrial agreement. The Court of Criminal Appeals, which agreed with these conclusions, also concluded that Appellant waived any conflict of interest when he declined to follow the recommendation of two separate civilian attorneys to sever his relationship with Major S.
A. POTENTIAL CRIMINAL AND ADMINISTRATIVE ACTIONS RESULTING FROM THE CONDUCT BETWEEN THE ATTORNEY AND HIS CLIENT
Major S, the
attorney, engaged in a course of
conduct with Appellant, his client, which exposed both of them to the
possibility of prosecution, conviction, and substantial confinement for
military crimes of fraternization and sodomy.
An officer who violates the custom of the armed forces against
fraternization with an enlisted person may receive a sentence that
confinement for two years, a punitive separation, and forfeiture of all
allowances. See Article 134; Manual
Fraternization and sodomy are not minor or obscure matters. The policies of the armed forces on both fraternization and homosexuality have been the subject of significant litigation and public controversy in recent years. See, e.g., David S. Jonas, Fraternization: Time For A Rational Department Of Defense Standard, 135 Mil. L. Rev. 37 (1992); Jeffrey S. Davis, Military Policy toward Homosexuals: Scientific, Historical, and Legal Perspectives, 131 Mil. L. Rev. 55 (1991). Less than five years before Appellant's trial -- while both Major S and Appellant were members of the Army -- the executive and legislative branches of government engaged in a highly publicized review of the policies pertaining to homosexuality in the armed forces. See National Defense Authorization Act for Fiscal Year 1994,
L. No. 103-160, § 571(a)(1), 107 Stat. 1670
at 10 U.S.C. § 654); H.R. Rep. No. 103-200, at 286 (1993); S. Rep. No.
at 263 (1993). This debate culminated in
the passage of legislation, signed into law by the President, which
that “[t]he presence in the armed forces of persons who demonstrate a
propensity or intent to engage in homosexual acts would create an
risk to the high standards of morale, good order and discipline, and
cohesion that are the essence of military capability.”
10 U.S.C. § 654(a)(15).
The legislation mandates discharge of any
service member who has engaged in a homosexual act, subject to narrowly
B. ETHICAL CONSIDERATIONS
addition to potential criminal or
administrative action for misconduct as an Army officer, Major S
conduct that subjected him to the possibility of additional
for violation of the ethical rules applicable to attorneys in the Army. Rule 1.7(b) of the Army Rules of Professional
Conduct for Lawyers prohibits representational conflicts of interest,
specifying that “[a] lawyer shall not represent a client if the
of that client may be materially limited . . . by the lawyer’s own
. . ." AR 27-26,
Army Rules of Professional Conduct, Appendix B (May 1, 1992). Rule 1.2(d) states that “[a] lawyer shall not
counsel a client to engage, or assist a client, in conduct that the
knows is criminal or fraudulent.”
respect to sexual activity between attorneys
and clients, civilian jurisdictions have taken a variety of positions
whether there should be a complete prohibition during an ongoing
attorney-client relationship, or whether sexual activity should be
only in specified circumstances. See, e.g., Abed Awad,
Sexual Relations, 22
Legal Prof. 131 (1998). The
Army has endorsed the views of the American Bar Association Standing
on Ethics and Professional Responsibility, as expressed in Formal
92-364 (1992) [hereinafter ABA Formal Op. 92-364].
See Army Office of the Judge Advocate
General Standards of Conduct Office, Professional Responsibility
Notes, 1993 Army Law. 48 (August 1993)(quoting
ABA Formal Op. 92-364 in full). The
may involve unfair exploitation of the lawyer’s fiduciary position and presents a significant danger that the lawyer’s ability to represent the client adequately may be impaired . . . . The roles of lover and lawyer are potentially conflicting ones as the emotional involvement that is fostered by a sexual relationship has the potential to undercut the objective detachment that is often demanded for adequate representation.
the client may not feel free to rebuff unwanted sexual advances because of fear that such a rejection will either reduce the lawyer’s ardor for the client’s cause or, worse yet, require finding a new lawyer, causing the client to lose the time and money that has already been invested in the present representation and possibly damaging the client’s legal position.
. . . enter a sexual relationship with a client when that would undermine the client’s case, abuse the client’s dependence on the lawyer, or create risk to the lawyer’s independent judgment . . . .")
C. THE IMPACT OF CRIMINAL CONDUCT AND ETHICAL VIOLATIONS
ON THE CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL
Members of the armed forces facing criminal charges, like their civilian counterparts, have a constitutional right to effective assistance of counsel. U.S. Const. amend VI. Our Court reviews claims of ineffective assistance of counsel de novo. United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002)(applying the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984): “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.”).
attorney's violation of the canons of legal ethics does not necessarily
the attorney's assistance ineffective. Nix
v. Whiteside, 475
an attorney has engaged in criminal misconduct similar to the conduct
in Appellant’s trial, the federal courts have taken different
approaches on the
question of whether there is inherent prejudice or whether prejudice
specifically demonstrated. Compare
United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988), our Court
considered the impact on the effective assistance of counsel in a case
male civilian defense attorney engaged in a consensual sexual act with
female military client during the evening before the final day of her
trial. In those circumstances, our Court
declined to hold that every sexual relationship between an attorney and
necessarily creates a conflict of interest that violates a client's
Amendment right to the effective assistance of counsel.
D. THE COMBINATION OF POTENTIAL CRIMINAL LIABILITY
AND ETHICAL MISCONDUCT
The appeal before us presents a case of first impression, with no direct counterpart in civilian law. The case involves a volatile mixture of sex and crime in the context of the military's treatment of fraternization and sodomy as criminal offenses.
Defense counsel’s conduct with his client placed both the attorney and client at the risk of criminal prosecution for violating the very article of the UCMJ, Article 125, that was the subject of the present case. Well before the onset of trial, Major S repeatedly placed himself at risk of severe personal and professional consequences, including the possibility of confinement by court-martial, administrative termination of his military career, and professional discipline. The extraordinary pressure under which he labored during his representation of Appellant is underscored tragically by the fact that he took his own life less than a day after he was informed that his superiors had learned of his personal relationship with Appellant.
Because of counsel’s suicide, we do not have the benefit of any testimony that he might have provided as to what consideration he gave potential defense strategies in this case. In the absence of such testimony, we consider the case from the perspective of a military defense counsel caught between the conflicting pressures generated by his own sexual misconduct and his professional responsibilities. By his actions, counsel placed himself and his client in a position where testimony by the client entailed significant risks. Any exploration into Appellant’s conduct would have raised the possibility that the prosecution would have endeavored through cross-examination or rebuttal to elicit evidence of similar sexual misconduct. This would have created the potential for exposing counsel’s sexual misconduct with Appellant.
In those circumstances, defense counsel faced a conflict between his personal interests and his responsibility to give thoughtful, dispassionate consideration and advice concerning the range of options facing the defense. We do not know whether the defense counsel in this case rejected any specific option on the grounds that it was not in his client’s best interest, or because it was not in his own best interest. We do know that when confronted about the sexual misconduct with his client, it was only a matter of hours before he took his own life.
The uniquely proscribed relationship before us was inherently prejudicial and created a per se conflict of interest in counsel’s representation of the Appellant. The facts of this case are distinguishable from the limited, consensual relationship between a civilian counsel and his client that we considered in Babbitt, where we declined to find such a per se conflict. 26 M.J. at 158-59. Here, we confront a course of conduct involving an attorney’s abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney’s client was on trial. All of this is left unexplained due to the attorney’s untimely death. As stated by the Second Circuit in Cancilla, the conflict created by this conduct was “real, not simply possible” and “so threatening as to justify a presumption that the adequacy of representation was affected.” 725 F.2d at 870.
The problems flowing from the conduct of Major S are not overcome in this case by actions of the assistant defense counsel, Captain L, who negotiated the pretrial agreement. Major S was the experienced, lead counsel in the case. Appellant relied on Major S and was entitled to the benefit of conflict-free advice from Major S about the range of alternatives before him. He did not receive that advice.
respect to waiver, we note that the court below relied on Appellant's
discussions with two civilian lawyers, Attorney W and Attorney T, in
that he waived any objection to Major S as his counsel.
Both attorneys advised him to sever the
relationship because the behavior of Major S was unethical. Neither
however, provided him with a detailed explanation of the relationship
the merits of the case and the attorney’s ethical obligations. Both focused on the matter from the
attorney’s perspective, not the client’s perspective.
Attorney W declined to discuss the substance
of the charges with Appellant, and Attorney T focused primarily on the
that he would not take the case if Major S remained on it.
We do not fault either attorney for not
engaging in a detailed discussion with Appellant of the impact of any
behavior by Appellant on the merits of his case. In
both cases, the discussions between the
apparently distraught Appellant and the cautious lawyers simply did not
to the point of forming an attorney-client relationship with respect to
charged offenses. Appellant's
conversations with the two civilian attorneys in this case did not
type of informed discussion of the specific pitfalls of retaining Major
would demonstrate a knowing, intelligent waiver of the right to
assistance of counsel. See
The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
challenge to sodomy as a criminal offense in the military is currently
this Court in another case, United States v. Marcum, 59 M.J.
(C.A.A.F. 2003)(pet. granted), and we express no opinion at this time
whether such a challenge would or should prevail. Our
discussion of the potential penalties for
sodomy in the current case reflects the provisions of the MCM
at the time of trial.
CRAWFORD, Chief Judge (dissenting):
respectfully dissent from the majority’s
creation of a per se rule of ineffectiveness that is contrary to
v Taylor, 535
claims of ineffective assistance
of counsel based on deficient representation, we must apply the
articulated by the Supreme Court in Strickland v. Washington,
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
The type of conflict presented in this case is not unique to the military. In fact, there have been many federal cases addressing ineffectiveness where the client and attorney were allegedly involved in a related criminal endeavor. See, e.g., United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984)(attorney participated with client’s coconspirators in crime similar to client’s); United States v. Briguglio, 675 F.2d 81 (3d Cir. 1982)(attorney under investigation by United States Attorney’s Office prosecuting client). To assess ineffectiveness in these cases, the courts have rejected a per se rule and, instead, have examined the record to determine if there was prejudice. Unlike the instant case, in none of the federal cases was there the mitigating presence of an independent counsel, or a guilty plea tested through the extensive providence inquiry required in military practice.
in the case at bar has failed to
demonstrate any prejudice.
Despite his admission of guilt to the charge of indecent
Appellant availed himself of a pretrial agreement which reduced the
limited the duration of the adjudged confinement. Indeed,
Major S’s representation successfully
gave Appellant the benefit of his bargain and, as the lower court
noted, “it is difficult to imagine what more
[the defense] could
have done on [Appellant’s] behalf to produce a more favorable result.”
this Court has repeatedly emphasized the military judge’s obligation to
that guilty pleas are voluntary and pretrial agreements are well
understood. Rule for Courts-Martial
910. See, e.g., United States
v. King, 3 M.J. 458 (C.M.A. 1977)(holding
military judge must confirm at trial that the written plea agreement
encompasses both parties’ understanding of the meaning and effect of
bargain). Indeed, “[t]he military
justice system imposes even stricter standards on military judges
with regards to guilty pleas
than those imposed on federal civilian judges.”
The detailed providence inquiry in this case, informed by Appellant’s binding stipulation of fact, is abundantly clear that Appellant knowingly and willingly pleaded guilty to the charged offense, knowingly and willingly entered the pretrial
agreement, and was indeed satisfied with the assistance of counsel that accompanied his decision to plead guilty and enter the pretrial agreement. See United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003)(noting that this Court considers the context of the entire record to determine whether a plea was provident). The military judge questioned Appellant, in pertinent part, as follows:
MJ: Anyone force you to enter into this agreement?
ACC: No, Your Honor.
. . . .
MJ: Anyone made any promises to you that aren’t written into this agreement in an attempt to get you to plead guilty?
ACC: No, Your Honor.
. . . .
MJ: . . . Paragraph 4 [of the pretrial agreement] says that the offer to plead guilty originated with you; and, that no person made any attempt to force or coerce you into making this offer. That just means it was your idea. Was it?
ACC: Yes, it was, Your Honor.
. . . .
MJ: Have you had enough time to discuss this agreement with both of your defense counsel?
ACC: I have, Your Honor.
MJ: Are you satisfied with their advice regarding this pretrial agreement?
ACC: I am, Your Honor.
MJ: And, again, I ask you, did you enter into the agreement of your own free will?
ACC: I did, Your Honor.
MJ: Did anybody force you to do this?
ACC: No, Your Honor.
. . . .
MJ: You fully understand all of the terms and conditions [of the pretrial agreement] and how they are going to affect your case?
ACC: I do, Your Honor.
. . . .
MJ: Are you satisfied [with your defense counsels’] advice with regard to your case?
ACC: I am, Your Honor.
MJ: Satisfied with them as your defense counsel?
ACC: Yes, Your Honor.
MJ: Are you pleading guilty voluntarily and of your own free will?
ACC: I am, Your Honor.
MJ: Anyone made any threat or tried in any way to force you to plead guilty?
ACC: No, Your Honor.
. . . .
MJ: Sergeant Cain, I find that your plea of guilty is made voluntarily and with full knowledge of its meaning and effect.
I further find that you have knowingly, intelligently and consciously waived your rights against self-incrimination, to a trial of the facts by a court-martial and to be confronted by the witnesses against you.
Accordingly, your plea of guilty is provident. It is accepted.
Given this Court’s longstanding efforts to ensure that guilty pleas are sincere and voluntary, and that only legitimate, mutually-selected pretrial agreements are put into effect, this Court is remiss to reverse Appellant’s conviction – and in so doing negate his accepted guilty plea and rescind his binding pretrial agreement – in the absence of any prejudice.
even if Appellant had suffered prejudice, he affirmatively waived his
conflict-free representation when he freely and deliberately entered
relationship with his defense counsel. See
United States v. Mezzanatto, 513
· Appellant was 33-years-old, a sergeant with more than 12 years of service, with a GT score of 112 and a two- year associate’s degree.
· Appellant told several people that he continued the relationship only because he wanted defense counsel to continue to represent him. Appellant considered defense counsel to be an “excellent, dynamic, and aggressive” attorney, and believed that because counsel was gay, like Appellant, counsel would fight even harder on Appellant’s behalf. Appellant believed Major S was the best military defense counsel available.
· Appellant never told defense counsel that he had any reservations about their relationship. Appellant testified at the hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), “[N]ot once did I protest what he was doing to me or what he had me do to him.”
57 M.J. at 735.
There was no doubt that Appellant wanted Major S to
and did what he felt was necessary to secure Major S’s “excellent,
these reasons, I respectfully dissent
from the lead opinion.