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).
2003
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).
2002
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).
2001
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).
2000
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).
1999
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).