2009 (September Term)
United
States v. Roach, 69 M.J. 17 (a recusal of a
judge means the judge may not
preside over any subsequent proceedings in the case or perform any
other
judicial actions with respect to it; once recused, a military judge should not play any procedural or
substantive role with regard to the matter about which he is recused;
when a
judge is recused, the judge should not take action to influence the
appointment
of his or her replacement).
(the chief judge of a court of
criminal appeals
may not recommend to the JAG an acting chief judge for a case in which
the
chief judge is recused; by taking a procedural step after his recusal,
at a
minimum, the chief judge’s actions create the appearance of directly
impacting
a case from which he was recused).
United
States v. Rodriguez-Rivera, 63 M.J. 372 (prosecutorial misconduct
is
generally defined as action or inaction by a prosecutor in violation of
some
legal norm or standard, e.g., a constitutional provision, a statute, a
Manual
rule, or an applicable professional ethics canon).
(in analyzing allegations of
prosecutorial misconduct, courts should gauge the overall effect of
counsel’s
conduct on the trial, and not counsel’s personal blameworthiness).
(there may be a case, based
upon the
dialogue between the parties and the military judge, where there is a
sound
basis in the record for concluding that there was a clear, common
understanding
between the military judge and the parties as to sequestration, without
issuance of a formal order; in such a case, violating that clear
understanding
could constitute prosecutorial misconduct; in this case, there was
neither a
formal nor a clearly understood sequestration order, and a
sequestration order
could not be implied based on the judge’s denial of the government’s
request to
allow one or both of the parents to be present when the child
testified; unless
the record demonstrates that witnesses were to be sequestrated, the
prosecution
cannot be found to have intentionally committed misconduct; as a
result, there
was no prosecutorial misconduct based on an allegation that the trial
counsel
intentionally violated the military judge’s sequestration order by
allowing the
parents of the child to discuss the substance of the child’s testimony
during a
recess).
(there was no prosecutorial
misconduct
based on an allegation that the child victim was improperly coached by
the
trial counsel, the assistant trial counsel, and the child’s parents
during a
recess in the child’s testimony, where the trial counsel and parents
did
nothing more that encourage the child to tell the truth and the whole
story; to
the extent the military judge did have concerns about any influence the
discussion during the recess may have had on the child, he mitigated
that
influence by allowing cross-examination of the child concerning the
events
during the recess and the possibility that the child was coached or
coerced).
(there was no prosecutorial
misconduct
arising from an allegation that the assistant trial counsel was less
than
candid about the discussions that occurred between him and a child
witness
during the recess, where a difference in perception between the
assistant trial
counsel and a child witness about their discussions was not a
sufficient basis
for finding that the assistant trial counsel was dishonest with the
military
judge).
(there was no prosecutorial
misconduct
arising from an allegation that a government expert witness had
listened to
other witnesses and collaborated with the government by passing notes
to the
trial counsel during the trial, where the trial counsel advised the
military
judge that the notes the witness had passed were not written by her,
but that
the witness was merely relaying notes passed to the trial counsel from
other
people; the military judge accepted the trial counsel’s explanation,
after
having had the opportunity to observe the proceedings and the
explanation of
the trial counsel; thus, there is no basis to conclude that the
military
judge’s finding that the trial counsel was candid with regard to this
incident
was clearly erroneous).
United
States v. Quintanilla, 63 M.J. 29 (although the assistant trial
counsel’s
ex parte communication with the Article 32 investigating officer prior
to trial
was improper (violating the prohibition against certain ex parte
communications),
that improper conversation did not result in prejudice, particularly in
light
of the military judge’s finding that the conversation had no bearing on
the
Article 32, UCMJ, investigation).
(any error in the assistant
trial counsel
sending two ex parte e-mail messages to the prospective members of the
panel
advising them about the trial schedule was harmless even though he
wrote the
e-mails with the goal of establishing favorable opinions and trust from
the
members; although the assistant trial counsel may have had a subjective
ulterior motive in sending the e-mails, an objective reading of the
e-mails did
not reveal this motive; considering the extent and strength of the
evidence
against appellant in this case, these e-mails would not have influenced
the
members’ determination of guilt).
(the ethical rule prohibiting
attorneys
from acting as both an advocate and a witness on the same matter was
violated
in this case when, during the court-martial, trial counsel testified on
a
motion and then argued the motion, relying on his own testimony;
however, this
violation was harmless where the motion was argued in an Article 39(a)
session
outside the presence of the members and would not have impacted the
members’
findings).
(although the trial counsel
and assistant
trial counsel impermissibly withheld evidence from the evidence
custodian
(violating the prohibition against an attorney engaging in illegal and
unethical conduct), given the post-trial timing of this conduct,
however, it
did not prejudice appellant’s court-martial).
2003
United
States v. Brunson, 59 MJ 41 (counsel have a
responsibility
to aggressively represent clients before military trial and appellate
courts;
if counsel fail to comply with the basic rules of this Court, they risk
compromising their client’s rights and protections; attorneys must
adequately
protect the appellate rights of their clients, comply with the Rules of
Practice and Procedure of this Court, and provide competent and timely
appellate representation)
(this Court has adopted the ABA’s Model Rules of Professional
Conduct
as the rules of conduct for members of the Bar of this Court; those
Model Rules
require that counsel shall act with reasonable diligence and promptness
in
representing a client; the comment to Rule 1.3 provides that a lawyer’s
work
load must be controlled so that each matter can be handled
competently).