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).