MILITARY JUSTICE PERSONNE: Defense Function: Detailed Military Counsel

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (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). 

2010 (September Term)

United States v. Hutchins, 69 M.J. 282 (in each general and special court-martial, a statutorily qualified military defense counsel, known as detailed military defense counsel, is assigned to represent the accused; the detailing authority has discretion to assign additional military defense counsel, designated as assistant or associate detailed military defense counsel, to represent the accused). 

(Article 27 requires the Secretaries of the military departments to prescribe regulations governing the detail of counsel to courts-martial, permitting the detail through judge advocate rather than command channels; under current regulations, the defense counsel structure in the Marine Corps exercises the responsibility for detailing defense counsel to general and special courts-martial in that service). 

(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 counsel’s absence, nor did the military judge establish on the record the basis under RCM 505 or 506 for counsel’s 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 counsel’s participation). 

(the first detailed military assistant defense counsel’s 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 accused’s 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). 

United States v. Wiechmann, 67 M.J. 456 (under Article 27(a)(1), UCMJ, the secretaries of the military departments prescribe regulations governing the detail of military counsel; although the accused does not have the right to more than one detailed counsel, the person authorized by regulations prescribed under Article 27 to detail counsel, in his sole discretion may detail additional military counsel as assistant defense counsel). 

(the authority to assign detailed defense counsel to a particular case is vested in the official designated under departmental regulations, and the accused is not entitled to detailed counsel of choice under Article 27(a); although the accused does not have the right to detailed counsel of choice, once counsel has been detailed under Article 27(a) and an attorney-client relationship has been established, the convening authority may not undermine that relationship; the responsibility for any changes in the assignment of detailed counsel is vested in the authority competent to detail such counsel under departmental regulations, not the convening authority, and may be exercised only for good cause shown on the record or under the other limited circumstances provided in RCM 505(d)(2)(B)). 

(a convening authority may not interfere with or impede an attorney-client relationship established between an accused and detailed defense counsel). 

(a the convening authority exercises significant pretrial responsibilities in the military’s criminal justice system; the responsibility for detailing defense counsel, however, is not one of the duties assigned to the convening authority by law; although the UCMJ, as originally enacted, authorized the convening authority to detail counsel, Congress amended the statute in 1983 to provide that the responsibility for detailing counsel would be exercised by persons authorized to do so under departmental regulations; the regulations at issue in the present case vested the responsibility for detailing counsel in various department-level officers, not in the convening authority). 

(the convening authority erred by declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations; in so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of his counsel’s initial detail, and these actions violated appellant’s rights under Article 27, UCMJ).

(the convening authority’s action in declining to recognize appellant’s detailed counsel during the pretrial proceedings and initial pretrial agreements negotiations burdened counsel’s representation of appellant in several respects:  (1) the Article 32 proceeding was conducted without a full opportunity for counsel to prepare and participate; (2) counsel was excluded from pretrial disposition negotiations that the government conducted with a second, but less experienced defense counsel; (3) counsel was unable to represent appellant in pretrial procedural matters, such as in a scheduling conference or by requesting a continuance; under these circumstances, the government’s actions infringed appellant’s right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge).

United States v. Murphy, 50 MJ 4 (an accused is entitled to conflict free representation, a right which compels that counsel discuss any potential or actual conflicts of interest with the accused and that the military judge sua sponte resolve conflict questions on the record).

(multiple representation, even if unexplained on the record, creates a presumption that a conflict of interests existed; the presumption can be rebutted by actual facts focusing on the question of whether the multiple representation in a particular setting resulted in an actual conflict of interests).

(although convinced beyond any reasonable doubt that unresolved conflict of interests did not prejudice appellant with respect to findings, court could not say with confidence that testimony at center of potential conflict had no impact on members’ deliberations on sentence).

(in evaluating claims of ineffective assistance of counsel under the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984), this court does not scrutinize each and every movement or statement of counsel; rather, the court satisfies itself that an accused has had counsel who, by his or her representation, made the adversarial process work).

(although counsel who are learned in the law applicable to capital cases are less likely to provide inadequate representation than those who are not learned in the law, the court will nonetheless look to the adequacy of counsel’s performance, rather than viewing the limited experience of counsel as an inherent defect, to determine whether the accused was deprived of a fair trial, one where the results are reliable).

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).

(where apparent conflict arose because of a difference of opinion at to strategy, the totality of the circumstances indicated that appellant waived any conflict of interests where:  (1) appellant confirmed that he wanted counsel to continue with his case; (2) appellant indicated that he believed counsel had his best interests at heart; (3) appellant acknowledge that his criticism of counsel was due to agitation; (4) the military judge correctly advised appellant regarding the options he had as to pleading, the forum, whether to accept a pretrial agreement, and whether to testify; and (5) appellant apologized for his wrongful accusations against counsel during his unsworn statement).

United States v. Thompson, 51 MJ 431  (to prevail on a conflict of interest claim, appellant must demonstrate that defense counsel faced an actual conflict of interest which affected the adequacy of the attorney’s representation).

(accused’s complaint about defense counsel’s performance may in certain circumstances create a conflict of interest; however, where such a complaint is resolved by the accused and his counsel, defense counsel is freed from the competing interests which constitute the conflict).

(while complaint by accused’s wife may have created a potential conflict, action by defense counsel in quickly discussing matter with accused, determining that accused did not make complaint, and ascertaining that accused was satisfied with the quality of his representation, rendered defense counsel mentally free from competing interests and avoided actual conflict).

(test for ineffective assistance of counsel requires appellant to demonstrate deficient performance and that the deficiency prejudiced the defense to such an extent that appellant was denied a fair trial).

(no prejudicial error found in detailed defense counsel’s advice to accused concerning right to civilian counsel).

(appellant’s claim that defense counsel was inadequate by discouraging appellant from seeking assistance of psychologist did not provide sufficient factual basis for legal relief where facts revealed that the request for mental health assistance was for treatment during the pretrial and trial process without showing that the absence of this treatment prejudiced appellant at trial).

(defense counsel’s advice concerning impact of seeking psychological treatment was substantially correct in that military law did not then recognize a psychotherapist-patient privilege and disclosures made during treatment could possibly be used against accused).

United States v. Brownfield, 52 MJ 40 (despite the fact that a grant of clemency was unlikely, defense counsel was not free to ignore his post-trial duties without his client releasing him from representation; conflicts with the client must be resolved so that zealous representation may continue, or counsel must seek relief from the obligation to represent the client).

United States v. Voorhees, 50 MJ 494 (counsel was not ineffective for failing to object to qualifications of the convening authority to take post-trial action where the record does not establish that the convening authority was disqualified and counsel may tactically elect to forego possible objection in order to seek further favorable treatment from the convening authority).

United States v. Diaz-Duprey, 51 MJ 168 (where appellant made a colorable claim of ineffective assistance of counsel, in light of United States v. Ginn, 47 MJ 236 (1997), an evidentiary hearing was necessary to resolve the issue).

United States v. Scott, 51 MJ 326 (In determining whether there is a violation of a servicemember’s right to the effective assistance of counsel, the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984);  an appellant must first show that counsel’s representation fell below an objective standard of reasonableness, and second that there was prejudice flowing from counsel’s deficient performance).

(an appellant alleging ineffective assistance of counsel must show that counsel’s errors were so serious as to deprive appellant of a fair trial, a trail whose result is reliable; but scrutiny of counsel’s performance is highly deferential and that performance is supported by a presumption that counsel provided adequate assistance).

(against the evidence presented and the presumption that defense counsel was aware of the charges against appellant and planned a competent defense accordingly, appellant did not demonstrate that counsel’s representation was objectively unreasonable; similarly, in light of appellant’s significant crime spree, his sentence was far from excessive and appellant thus failed to show prejudice in sentencing).

United States v. Gray, 51 MJ 1 (normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered).

(claim that counsel failed to investigate mitigating circumstances rejected where the claim equated failure to discover facts with failure to investigate, the claim ignored the role appellant himself may have played in making less than full disclosure to his counsel, and the claim overlooked the substantial mitigating evidence presented in the case).

(claim that counsel ineffective because they failed to challenge the competence of pretrial evaluations and psychiatrists as well as failing to obtain complete mental health evaluation rejected).

(attack on counsel’s decisions on strategy and tactics on merits and sentencing rejected; hindsight in such matters is not usually countenanced in reviewing counsel’s performance).

(CAAF declines to establish minimum standards of qualification for defense counsel in capital cases; see United States v. Loving, 41 MJ 213, 300 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

United States v. Johnston, 51 MJ 227 (where accused’s detailed defense counsel had been released from active duty and was therefore not under the control of the Judge Advocate General of the Navy at the time of a new SJA recommendation, accused was not represented by counsel under Article 27b, UCMJ, at this critical point in the criminal proceedings against him as required by RCM 1106(f)(2)).

(where detailed defense counsel left active duty prior to preparation of a new SJA recommendation, failure of the convening authority to detail substitute counsel for appellant deprived him of his opportunity for sentence relief with the convening authority and was prejudicial to appellant’s substantial rights).