MILITARY JUSTICE PERSONNEL: Defense Function: Individual 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). 

2018 (October Term)

United States v. Cooper, 78 M.J. 283 (the purpose of the IMC colloquy is to ensure the accused receives an explanation of the full panoply of his rights to counsel unfiltered by the detailed defense counsel and for the military judge and appellate authorities to satisfy themselves that the accused was represented by the counsel of his choice). 

(in this case, the accused knowingly and intelligently waived his right to an IMC (1) where the military judge carefully explained to him at arraignment the nature of the right to IMC, and the accused told the military judge that he understood his rights and wanted to be represented solely by his current counsel, (2) where the military judge further asked if an IMC was ever requested, and the accused sat mute when his counsel told the military judge that no such request had been made, and (3) when a second defense counsel entered his appearance, the military judge again inquired as to whether other counsel had been requested, and when that second counsel told the military judge that no request for an IMC had been made, the accused again remained mute; the military judge’s colloquy with the accused concerning his right to an IMC was unequivocal; the military judge spoke directly to the accused and received direct answers back without the filter of the defense counsel; if the accused had wanted other counsel, he should have said so; the accused fully understood the nature of the right to an IMC and how it would have applied to him).

2010 (September Term)

United States v. Hutchins, 69 M.J. 282 (by statute, the accused may request representation by individual military counsel of the accused’s own selection, subject to the availability of such counsel under applicable statutory and regulatory standards).  


United States v. Spriggs, 52 MJ 235 (case contains detailed discussion of the right to individual military counsel, including:  the source of the right; standards and limitations applicable to requests for individual military counsel; assessing claimed prior attorney-client relationships and the limitations on severing such relationships; and burdens applicable to requests for individual military counsel and motions for individual military counsel).

(in support of motion for individual military counsel, accused failed to establish an attorney-client relationship that would be protected under the “good cause” limitations on severance where:  (1) the record did not demonstrate that attorney agreed to enter an attorney-client relationship with accused; (2) accused’s responses to the military judge revealed that accused understood that there was no agreement to enter into an attorney-client relationship; and, (3) the record did not reveal that the attorney engaged in any substantive activity for accused beyond discussing some of the pending charges and the possibility of representation).

(if a civilian attorney happens to be a reservist, that person’s availability as individual military counsel must be determined on the basis of activities undertaken in his or her military status, not on the basis of attorney-client relationships developed in civilian practice).

(record contained ample basis for denying individual military counsel request under the good-cause standard where:  (1) the judge advocate was routinely separated from active duty; (2) the attorney did not agree to represent the accused in his civilian capacity or in his capacity as a reservist; (3) a 15-day involuntary call to active duty would have been inadequate time for the attorney to investigate, prepare, and try a general court-martial; (4) the accused failed to show that an attorney-client relationship was established in the context of the attorney’s military assignment; and, (5) the accused failed to show that the attorney accomplished substantial trial preparation while in his military assignment).

(absent government misconduct, the routine separation of a judge advocate from active duty normally terminates any attorney-client relationship established on the basis of the attorney’s military status, except when:  (1) the attorney agrees to represent the client in his or her civilian capacity; or (2) the attorney enters the reserves and is ordered to represent the client to the extent permitted by applicable law based upon a determination by the appropriate official of reasonable availability).

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