MILITARY JUSTICE PERSONNEL: Defense Function: Right to Counsel

2023 (October Term)

United States v. Hasan, 84 M.J. 181 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; that right includes the right to waive counsel and to represent oneself).

(while the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent; the voluntariness of a waiver is measured by reference to the surrounding circumstances; and a simple disagreement with counsel about a certain line of defense is not enough to establish involuntary waiver of counsel).

(in this case, appellant voluntarily waived his right to counsel and validly elected to proceed pro se where (1) appellant affirmed that his decision was not the result of any threats or force and was made of his own free will, (2) there is nothing in the record indicating that threats, coercion, or physical or psychological force were involved, (3) appellant did not seek to replace members of his defense team but instead simply moved to represent himself without complaining to the court that his counsel was incompetent, unprepared, or otherwise unable to provide adequate representation, (4) appellant signed a document waiving his right to counsel, (5) although appellant argues on appeal that his waiver of counsel was not voluntary because going into trial, he desired to maintain his innocence, but his defense team sought to admit his guilt, appellant's claim that at trial he desired to maintain his innocence is belied by the record when he openly admitted that he was the shooter and he made no discernible effort to justify or explain the shootings or to otherwise absolve himself of guilt, and (6) appellant rejected the military judge's offer to explore obtaining new counsel).

(an accused's decision to proceed pro se during post-trial clemency proceedings is valid only if the accused knowingly, voluntarily, and intelligently waived the right to counsel; this inquiry into whether a waiver was knowing, voluntary, and intelligent is case specific).

2022 (October Term)

United States v. Gilmet, 83 M.J. 398 (Congress has granted military accuseds the right to detailed military counsel, military counsel of choice if reasonably available, and civilian counsel of choice at the accused’s own expense; once an attorney-client relationship has been established, the accused is absolutely entitled to retain that relationship in the absence of demonstrated good cause; when government actions frustrate the continuation of an established attorney-client relationship, the accused’s Article 38(b), UCMJ, counsel rights are violated as a result). 

(RCM 505(d)(2)(B) specifies the only ways in which an established attorney-client relationship may be severed; in this case, defense counsel could be excused upon request of the accused or application for withdrawal by defense counsel for good cause shown). 

(in this case, the UCI caused by statements from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career frustrated the continuation of an established attorney-client relationship and violated appellant’s Article 38(b) rights to counsel; although appellant waived his right to continued representation by his selected counsel, his decision to allow his counsel to withdraw under the pressure of UCI was not an action that could fairly be construed as a voluntary waiver of the attorney-client relationship). 

(while not all Article 38(b) right to counsel violations will result in a finding of prejudice, the character of the governmentaction in frustrating an existing attorney-client relationship is an important consideration when conducting the prejudice inquiry). 

(in this case, the government’s frustration of the continuance of a proper attorney-client relationship as the result of UCI arising from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career materially prejudiced appellant’s substantial rights to counsel; although the government did not actively restrict counsel from representing appellant, its failure to address the conflict of interest created by the UCI prevented counsel from representing appellant; the government prejudiced appellant’s Article 38 rights by creating the perception in the minds of appellant’s defense counsel that their future in the service would be jeopardized if they continued to zealously advocate for appellant).

2019 (October Term)

United States v. Watkins, 80 M.J. 253 ((the Sixth Amendment guarantees the right to counsel, and within that, the right to choice of counsel for those who hire their own counsel; it commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he believes to be best). 

(despite adequate representation by counsel, if it is not the accused’s counsel of choice and if he is erroneously prevented from being represented by the lawyer he wants, then the Sixth Amendment right has been violated). 

(the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two).

(Congress has provided members of the armed forces facing trial by general or special court-martial with counsel rights broader than those available to their civilian counterparts; an accused has the right to detailed military counsel, military counsel of choice if reasonably available and, at his own expense, civilian counsel of choice; appellant’s right to civilian counsel of choice is further protected under RCM 506(c) which states that defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown; nevertheless, this right to civilian counsel of choice is not absolute and must be balanced against society’s interest in the efficient and expeditious administration of justice; a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar). 

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). 

2008 (Transition)

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).

United States v. Scott, 51 MJ 326  (Sixth Amendment right to counsel codified under Article 27, UCMJ, applies to the pretrial, trial, and post-trial stages).

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