MILITARY JUSTICE PERSONNEL: Defense Function: Generally

2017 (October Term)

United States v. Andrews, 77 M.J. 393 (a defense counsel cannot sit like a bump on a log; he or she owes a duty to the client to object to improper arguments early and often; failure to do so may give rise to meritorious ineffective assistance of counsel claims). 

2015 (September Term)

United States v. Bess, 75 M.J. 70 (the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor). 

2013 (September Term)

United States v. Moss, 73 M.J. 64 (an accused has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal).

(the decision whether to take an appeal to an appellate court is personal to an appellant). 

(appellant did not authorize an appeal to the CAAF when she signed a pretrial rights advisement that advised her that she could petition the CAAF for review after the CCA had completed its review; the rights advisement simply informed her that if her conviction was affirmed by the CCA, she had the discretion to appeal to the CAAF and the Supreme Court, and if she chose to do so she had the same right to counsel before those courts as she did before the CCA; the language concerning a possible appeal to the CAAF was informative only, and appellant’s exercise of her right to counsel before the CCA cannot be construed to authorize a subsequent appeal to either the CAAF or the Supreme Court).

(once an attorney-client relationship is established, it must continue until terminated). 

(if an accused is not available and cannot be located within the time provided to file a petition for review before the CAAF, appellate defense counsel can and should proceed in accordance with the authority previously given by the accused and file such proceedings as may be necessary to protect the interests of his client; if the accused only indicated a desire to be represented by appellate defense counsel before the CCA, the attorney-client relationship is limited to representation before the CCA).

2010 (September Term)

United States v. Hohman, 70 M.J. 98 (RCM 505(d)(2)(B) and 506(c) provide specific options for severance of the attorney-client relationship; among those options, defense counsel may be excused by the military judge upon application for withdrawal by the defense counsel for good cause shown). 

(although separation from active duty normally terminates a military attorney’s representation of his client, highly contextual circumstances may warrant an exception from this general guidance in a particular case). 

(assignment of a new detailed trial defense counsel was sufficient to remedy the military judge’s procedural error in the severance of the status of the former detailed defense counsel upon his departure from active duty, given the responsibilities of the former counsel in relation to the defense team). 

United States v. Hutchins, 69 M.J. 282 (under the Rules for Courts-Martial, an established attorney-client relationship between an accused and defense counsel may be severed only under a limited set of circumstances; RCM 505(d)(2)(B) and 506(c), which provide the primary authority for severance of an attorney-client relationship, authorize four options; first, the detailing authority may excuse detailed defense counsel for good cause shown on the record; good cause includes physical disability, military exigency, and other extraordinary circumstances which render counsel unable to proceed with the court-martial within a reasonable time; good cause does not include temporary inconveniences which are incident to normal conditions of military life; second, defense counsel may be excused with the express consent of the accused; under the third option, defense counsel may be excused by the military judge upon application for withdrawal by the defense counsel for good cause shown; the fourth option permits the detailing authority to excuse detailed defense counsel upon appointment of individual military defense counsel requested by the accused under Article 38(a)(3)(B), UCMJ).   


(the first detailed military assistant defense counsel did not follow the appropriate procedures with respect to the termination of his participation in the court-martial prior to his separation from active duty; although counsel informed the accused that he would no longer serve as his counsel in view of his impending separation from active duty, he did not attend the next hearing of the court-martial despite still being on active duty; at that hearing, the military judge did not establish, on the record, the specific reason for the counselís absence, nor did the military judge establish on the record the basis under RCM 505 or 506 for counselís withdrawal from representation of the accused; in addition, none of the remarks made at that hearing contained a statement by or on behalf of the detailing authority excusing counsel from representing the accused; under the circumstances of this case, the record of trial did not establish a valid basis for the termination of counselís participation). 


(the first detailed military assistant defense counselís impending separation from active duty did not, by itself, establish good cause for severance of his attorney-client relationship with the accused; although separation from active duty normally terminates representation, highly contextual circumstances may warrant an exception from this general guidance in a particular case; in any given case, separation from active duty may amount to a routine personnel action or may implicate significant government interests; likewise, cancellation or postponement of a separation date, or recall to service in a reserve status, may involve routine action or significant interests; similarly, considerations pertinent to the role of a particular member of the defense team in a specific case may range from routine matters to complex considerations; absent a record developed at trial on these matters, the present case does not provide an appropriate occasion to set forth in detail the manner in which these various considerations should be weighed at trial and on appeal).  


(any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to the accused under applicable constitutional and statutory standards of law; the accused had the assistance of multiple counsel throughout the pertinent proceedings; after the assistant detailed defense counsel left the defense team, the accused had the assistance of a replacement assistant defense counsel detailed prior to trial; also, the military judge, at the request of the defense, granted a continuance to facilitate preparation by the new member of the defense team; the defense did not thereafter request additional time or resources to permit the reconstituted defense team to prepare for or conduct proceedings at trial; similarly, the personnel action leading to the severance in the present case resulted from a request initiated by the assistant defense counsel, not by the prosecution or the command; in that context, the case did not involve a violation of the accusedís Sixth Amendment right to counsel; also, the case did not involve structural error; the errors in this case involved oversights and omissions in addressing the issue of severance on the part of defense counsel, senior officials in the defense counsel structure, and the military judge; the case did not involve any decision by the military judge to deny pertinent relief requested by the defense, such as a request for additional time or resources for trial preparation, nor does the case involve a decision by the military judge to overrule a related defense objection; likewise, the case involves a personnel action initiated by a member of the defense team, and does not involve governmental action undertaken for the purpose of altering the composition of the defense team). 

2008 (Transition)

United States v. Rhoades, 65 M.J. 393 (under RCM 502(d)(4), a person may not serve as defense counsel if the person is or has been the accuser, an investigating officer, a military judge, or a court-martial member, subject to express waiver by the accused; in addition, no person who has acted as counsel for a party may serve as counsel for an opposing party in the same case; the disqualifications listed in RCM 502(d)(4) are not exclusive, and counsel may be disqualified based upon otherwise applicable standards of professional responsibility). 



United States v. Pena, 64 M.J. 259 (chief reliance must be placed on the defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences).

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