MILITARY JUSTICE PERSONNEL: Defense Function: Responsibilities

2023 (October Term)

United States v. Hasan, 84 M.J. 181 (when an accused is represented by counsel, he or she has the right to insist that counsel refrain from admitting guilt).

(it is the defendant's prerogative, not counsel's, to decide on the objective of his defense; however, decisions such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence, and every other decision properly considered to be trial management are left to counsel; included within counsel's purview is resolving a strategic dispute about whether to concede an element of a charged offense; some decisions, however, are reserved for the client -- notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal; autonomy to decide the objective of the defense belongs in this latter category).

2019 (October Term)

United States v. Reyes, 80 M.J. 218 (although the government often may suggest to the defense an appropriate expert from government resources, it is not the prosecution’s duty to locate defense experts; it is the defense counsel’s duty to provide the convening authority with the names of the experts the defense wishes the government to employ on its behalf). 

(the prosecution’s good faith attempts to locate expert consultants for the defense does not relieve the defense of its responsibility to locate defense experts; a defense counsel is responsible for doing his or her homework). 

2018 (October Term)

United States v. Voorhees, 79 M.J. 5 (defense counsel owe a duty to their clients to object to improper arguments early and often). 

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). 

(every attorney in a court-martial has a duty to uphold the integrity of the military justice system).

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected). 

(trial defense counsel must investigate adequately the possibility of evidence that would be of value to the accused in presenting a case; further, generally speaking, effective counsel will contact potential witnesses to determine the facts of the case; however, the duty to investigate does not require trial defense counsel to personally interview every potential witness in a case; the key point in deciding this issue is whether counsel made a good faith and substantive effort to identify those individuals who might be most helpful at trial, and to implement a means for obtaining information about and from these potential witnesses, thereby allowing counsel an opportunity to make an informed decision about their value for appellant’s court-martial). 

(in determining what presentation to make concerning penalty, counsel should consider whether any portion of the defense case will open the door to the prosecution’s presentation of otherwise inadmissible aggravating evidence). 

(a trial defense counsel’s decision on whether to call a witness is a tactical and strategic decision, requiring a balancing of the benefits and risks of the anticipated testimony). 

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).

2011 (September Term)

United States v. St. Blanc, 70 M.J. 424 (appellant should be correctly informed by his defense counsel of the maximum punishment he faces before making fundamental decisions in his case).

2008 (Transition)

United States v. Travis, 66 M.J. 301 (defense counsel should take reasonable steps to guarantee that clemency submissions have in fact been received under any circumstances but particularly where communications are problematic). 

United States v. Larson, 66 M.J. 212 (defense counsel undoubtedly has a duty to consult with the client regarding important decisions, including questions of overarching defense strategy; whether the client must consent to the strategic decision made by counsel before counsel may proceed is a different question).

United States v. Rhoades, 65 M.J. 393 (at the outset of the trial, defense counsel must advise the court as to whether counsel has acted in any matter which might tend to disqualify the counsel). 

 
2006

United States v. Miller, 63 M.J. 452 (chief reliance must be placed on defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences). 

(given the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state; however, trial defense counsel should be aware of the federal statute addressing mandatory reporting and registration for those who are convicted of offenses within the scope of this statute, and counsel should also be aware of DoD Instr. 1325.7, which identifies offenses that trigger mandatory sex offender reporting; the operation of this statute and instruction may have an impact on an accused’s decisions both before and at trial, and on an accused’s legal obligations after conviction). 

(a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused; for all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on DoD Instr. 1325.7, Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing; trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement; while failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance an appellate court will carefully consider in evaluating allegations of ineffective assistance of counsel). 

 
2003

United States v. Baker, 58 MJ 380  (the initial actions taken by a competent defense counsel in preparing diligently for trial are relatively non-controversial; at the outset, the attorney will discuss with the client the relative benefits of testifying versus relying on the privilege to remain silent; in the course of such a discussion, the attorney will ascertain from the client the nature of any proposed testimony; the attorney will then conduct a reasonable investigation to identify potential areas of vulnerability to cross-examination or rebuttal; in the course of such trial preparation, the attorney may identify conflicts between the proposed testimony and other evidence, including prior statements to the attorney by the client; such conflicts do not necessarily mean that the proposed testimony is false; it may well be that the client was reluctant to be candid with the attorney until a degree of comfort was established in the relationship; under the ethical obligations of competence, diligence, fairness, and candor, the attorney cannot close his or her eyes to the possibility that the proposed testimony is false; the attorney must conduct an appropriate investigation to ascertain whether the proposed testimony is false; even if the client asserts that he or she wants to present false testimony to the court, a diligent attorney will recognize that such a statement may reflect the pressures of a looming trial, and will not accept it at face value without making a reasonable inquiry).

(when an attorney perceives that a client’s prospective testimony may be false, the attorney will face conflicting pressures in terms of the client’s constitutional right to the effective assistance of counsel, ethical duties toward the client, ethical duties toward the court, and applicable statutory and regulatory procedures; despite substantial attention to this problem by scholars, practitioners, and judges, there is considerable disagreement as to the steps that should be taken by counsel and judges to reconcile these competing interests; the Supreme Court, in its leading decision on these issues, declined to provide detailed guidance with respect to the weight to be given to recognized canons of ethics, the standards established in statutes or professional codes, and the Sixth Amendment; although we have touched upon these matters in earlier cases, we have not issued definitive holdings regarding the propriety of any particular approach).

(the standard an attorney should apply in determining whether a client's proposed testimony is false for purposes of triggering any ethical obligations is that of "a firm factual basis"; that standard is sufficient to ensure that counsel has conducted an adequate inquiry prior to initiating any action under the ethical standards).

(if a client persists in a desire to provide what the attorney has determined to be false testimony, there are three alternatives available to counsel: (1) the first view is that the attorney should not have any involvement with a client who intends to taint the proceeding through the presentation of false testimony; under this view, if the client persists in the desire to testify falsely, the attorney should ask the court for permission to withdraw from the representation; (2) the second view is that withdrawal is too disruptive and simply foists the issue on the next attorney; therefore, the relationship should not be severed completely, but the client should not have the assistance of counsel during the presentation of testimony; under this approach, the attorney provides non-specific notice to the court that the client will testify in free narrative form without the benefit of questions from defense counsel, and counsel does not refer to the testimony during closing argument; and (3) the third view is that the free narrative approach violates attorney-client confidentiality because the unusual format of the testimony signals to the judge or jury that the client is not telling the truth; this view focuses on the confidentiality of the attorney-client relationship, the client’s right to assistance of counsel, and the client’s right to testify; under this approach, if the client persists in the desire to testify, the attorney should provide unqualified assistance, treat the matter in the same fashion as any other evidence, and give no indication of concerns about perjury to the court or opposing counsel).

 (the first and third options available to an attorney faced with a client who may commit perjury at trial – withdrawal of counsel and disregard of the perjury - each attempt to address the issue by giving primacy to one set of interests; the second approach – testimony without the assistance of counsel – attempts to balance the competing interests; given the conflicting interests at stake, none of the alternatives is completely satisfactory, but the free narrative approach offers a reasonable opportunity to achieve a fair balance).

(we have identified a number of steps that counsel and military judges may consider taking to reduce the potential for confusion and error in situations involving potential client perjury; at the outset, the defense counsel should conduct an appropriate investigation into the validity of evidence that is likely to be offered at trial, including prospective testimony by the accused; if such an investigation provides the attorney with a firm factual basis for determining that the prospective testimony is false, the attorney should have a discussion with the client that reviews the facts, the basis for the attorney’s concern, and the potential consequences for the accused if the client persists in a desire to provide the testimony; the advice should cover consequences in terms of the obligation to tell the truth, pertinent criminal sanctions, tactical considerations at trial, and the effect of testimony in a free narrative form; if the accused persists, the attorney should request an on-the-record ex parte proceeding before the military judge, which would be attended by the accused; a motion to withdraw should not be made or granted in any case unless the circumstances as a whole have produced such an irreconcilable conflict between counsel and the accused that effective representation no longer is possible; at the ex parte proceeding, the attorney should advise the military judge that the client wishes to testify and that the client will testify in free narrative form; the military judge should not inquire into the reasons, but should: (1) remind the attorney of the obligation to conduct an appropriate investigation that demonstrates the basis for the concern; (2) ensure that the accused understands the consequences of testifying in free narrative form; (3) ask the attorney and the client to have a further conversation during a recess prior to making a final decision as to how to proceed; and (4) direct the attorney to prepare a memorandum describing the attorney’s investigation, factual concerns, and advice provided to the accused; if, after such a recess, the accused decides to proceed with the testimony, the attorney and the accused should notify the military judge of that decision in an ex parte proceeding; prior to the conclusion of the trial, the military judge should ensure that defense counsel submits a copy of the memorandum under seal; the document should be attached to the record as a sealed exhibit and should remain sealed, except to the extent release is directed during appellate review upon an appropriate showing and subject to appropriate protective orders; because the actual circumstances – including service regulations and potentially applicable state bar ethical rules - may require counsel to consider variations in the suggested standards for assessing whether the evidence is false and related procedures for addressing the matter at trial, we emphasize that these are available measures that may prove useful at trial, and that we are not establishing mandatory requirements at this time; in the course of adapting these measures to the needs of a particular case, the military judge and counsel for the parties should keep in mind their respective responsibilities with regard to the truth-seeking purposes of a trial, consistent with applicable constitutional, statutory, and ethical considerations).

United States v. Dorman, 58 MJ 295 (trial defense counsel maintains a duty of loyalty to an appellant during appellate review; the loyalty of defense counsel to his client - before, during, and after trial - is a cornerstone of military justice; thus, even after trial, the trial defense attorney should and can with honor be of much more assistance to his client and to the court; in short, trial defense counsel maintains a continuing obligation to the client beyond the trial’s conclusion, which includes providing reasonable assistance where permitted and refraining from acting in a manner inconsistent with the client’s right to effective assistance of counsel on appeal; implicit in both the right to appeal and counsel’s duty of loyalty is the understanding that trial defense counsel will not interfere with appellate defense counsel’s representation, and to the extent necessary and possible, will assist appellate defense counsel in preparing the appeal).

(trial defense counsel’s post-trial obligations must be consistent with the ethical duty of confidentiality; a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is otherwise permitted by ABA Model Rules of Professional Conduct 1.6; a fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal
information relating to the representation).

(pursuant to trial defense counsel’s continuing obligation to the client and the corresponding duty of confidentiality, we hold that trial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the client’s written release; if trial defense counsel believes that disclosure of particular information from the file would entail a material risk to the client, counsel should provide an explanation to the client about the material risks of and reasonably available alternatives to the proposed course of conduct; this protocol supports trial defense counsel’s continuing obligation to the client by providing appellate defense counsel with information counsel may need to be an effective appellate advocate; at the same time, the duty of confidentiality is preserved, as the client must authorize the case file’s release).

(to be sure, there are exceptions to this general rule [that trial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the client’s written release] which may require withholding the release of some information; for example, if information has been provided to a lawyer on the promise that it will be kept in confidence - even with respect to his client - the confidentiality of that information must be maintained; moreover, to the extent that a statute or court order limits access to specific persons or entities in a manner that has the effect of excluding appellate defense counsel, trial defense counsel is subject to the limitations and procedures governing access under the statute or order; such information might include matter designated by the government as classified and documents governed by protective orders; in such a situation, appellate defense counsel must obtain access through the procedures established by the statute or court order; finally, if for some reason, cost to the attorney is involved in reproducing documents or providing access, the client must provide for reimbursement of those costs).

2002

United States v. Gilley, 56 MJ 113 (responsibility for tactical and strategic post-trial decisions are within the control of counsel who must make an evaluative judgment on what items to submit to the convening authority and to so advise the client).

United States v. Burt, 56 MJ 261 (To be an effective advocate, trial defense counsel is required to discuss with an accused the various components of a military sentence, i.e., confinement, discharge, reduction in rank, and forfeitures, and after such counseling and in accordance with his client’s wishes, zealously represent his or her client).

(effective advocacy requires an astute, reflective evaluation of a set of circumstances with rational, tactical trial choices flowing therefrom.

2001

United States v. Bolkan, 55 MJ 425, (the ethical responsibility to diligently represent an accused at trial requires a wide range of professional decisions, including what evidence to present and what arguments to make; however, the accused has control of the plea, pretrial agreement, questions as to forum, right to testify, and whether to appeal).

1999

United States v. Reist, 50 MJ 108 (any issue as to whether trial counsel is so determined to convict and punish an accused that he became an “accuser” is waived by that accused’s failure to raise the issue at trial).

(failure to object to improper argument constitutes waiver of the objection).

(argument asking judge to minimize the effects of accused’s guilty pleas and characterizing accused’s actions as “cowardly criminal conduct of a sexual pervert” did not indicate animus, but were permissible hard blows that may be struck by trial counsel during sentencing argument).

United States v. Carpenter, 51 MJ 393 (it is improper argument for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights; a prosecutor treads on dangerous ground [i.e., the rights to be present in court and confront witnesses] when he comments on an accused’s ability to observe the witnesses and shape his testimony).