IN THE CASE OF
UNITED
STATES, Appellee
v.
Billy E.
CAIN, Sergeant
No.
03-0212
Crim. App.
No.
9800797
Argued
Decided
EFFRON,
J., delivered the opinion of the Court, in which GIERKE, BAKER, and
ERDMANN,
JJ., joined. CRAWFORD, C.J., filed a
dissenting opinion.
Counsel
For Appellant:
Captain
Rob W. MacDonald (argued); Colonel Robert Teetsel,
Lieutenant Colonel Mark Tellitocci,
and Major Allyson G. Lambert (on
brief); Lieutenant
Colonel E. Allen Chandler, Jr., Major Imogene M. Jamison,
and Captain
Mary E. Card.
For Appellee: Captain Edward E. Wiggers
(argued); Colonel Lauren B. Leeker,
Lieutenant
Colonel Margaret B. Baines, and Major Natalie A. Kolb (on
brief).
Military Judge:
J. J.
Smith
This
opinion is subject to editorial correction
before final publication.
Judge
EFFRON delivered the opinion of the Court.
At
a general court-martial composed of a military judge sitting alone,
Appellant
was convicted, pursuant to his pleas, of indecent assault (two
specifications),
in violation of Article 134, Uniform Code of Military Justice
[hereinafter
UCMJ], 10 U.S.C. § 934 (2000). He was
sentenced to a dishonorable discharge, confinement for five years,
forfeiture
of all pay and allowances, and reduction to Private E-1.
Pursuant to a pretrial agreement, the
convening authority approved a sentence providing for a dishonorable
discharge,
24 months’ confinement, forfeiture of all pay and allowances, and
reduction to
Private E-1. The Court of Criminal
Appeals affirmed.
On
Appellant’s petition, we granted review of the following issues:
I. WHETHER
APPELLANT WAS DENIED THE FUNDAMENTAL RIGHT TO CONFLICT FREE AND
EFFECTIVE
ASSISTANCE OF COUNSEL WHEN THE LEAD DEFENSE COUNSEL AND APPELLANT
ENGAGED IN A
SECRETIVE HOMOSEXUAL RELATIONSHIP.
II. WHETHER
THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT
APPELLANT’S
SEXUAL RELATIONSHIP WITH HIS LEAD DEFENSE COUNSEL DID NOT CREATE A
CONFLICT OF
INTEREST DENYING APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL.
For
the reasons set forth below, we conclude that Appellant did not receive
effective
assistance of counsel and reverse.
I.
BACKGROUND
A.
COURT-MARTIAL PROCEEDINGS
1. Assignment
of defense counsel to represent
Appellant
In
October 1997, Appellant was charged with three specifications of
forcible
sodomy under Article 125, UCMJ, 10 U.S.C. § 925 (2000).
The charges alleged that the offenses
occurred between 1993 and 1995.
At
the time of the first charged offense, Appellant was assigned to the
Reserve
Officer Training Corps (ROTC) Department at
The
military justice chain of command over Appellant included his brigade
commander
at
Civilian
authorities began an investigation into similar charges in 1995. The brigade commander at
Subsequent
to Appellant’s reenlistment, a new brigade commander was assigned to
After
Appellant submitted his allegations against the commander and executive
officer, military authorities decided to reopen the investigation into
the
charges against Appellant that had been dismissed by civilian
authorities. In the meantime, the brigade
commander was
relieved, but the renewed investigation into Appellant’s activities
continued
apace. Charges were preferred against
Appellant on
The
special court-martial convening authority appointed an investigating
officer
under Article 32, UCMJ, 10 U.S.C. § 832 (2000), to look into the
allegations. The Article 32 hearing was
conducted at
In
January 1998, Appellant was assigned temporarily to
2. Pretrial
motions
In
February and March, the defense filed two motions to dismiss the case
on
procedural grounds. The first challenged
the delay in bringing the case to trial.
See U.S. Const. amend. V (due
process)
and Rule for Courts-Martial 907 [hereinafter R.C.M.] (speedy
trial). The military judge denied the
motion. The defense filed a petition for
extraordinary relief in the United States Army Court of Criminal
Appeals on the
same grounds, which was denied without prejudice to consideration of
the matter
during further proceedings.
The second motion
alleged selective prosecution
in violation of Appellant’s due process and equal protection rights. See U.S. Const. amend.
V. The motion noted that civilian
authorities had dismissed the underlying charges against Appellant;
that
military officials knew of the charges when Appellant was permitted to
reenlist
in April 1996; that the charges were resurrected because the command
believed
that Appellant was homosexual; and that the charges were filed in
retaliation
for Appellant’s “whistleblower” complaint against the command. The military judge denied the motion.
3. The
plea agreement
In
mid-May, the defense entered into negotiations with the Government,
which
resulted in a pretrial agreement.
Appellant agreed to plead guilty to two specifications of
indecent
assault in lieu of two of the forcible sodomy specifications. The convening authority agreed to direct the
trial counsel to dismiss the remaining forcible sodomy specification
and to
disapprove any sentence greater than a dishonorable discharge, 24
months’
confinement, forfeiture of all pay and allowances, and reduction to
Private
E-1.
At
a court-martial session on June 2, Appellant entered pleas consistent
with the
pretrial agreement. The military judge
conducted a detailed inquiry into the providence of Appellant’s pleas. After concluding that the pleas were
provident, the military judge entered findings consistent with those
pleas, and
sentenced him to a dishonorable discharge, confinement for five years,
forfeiture
of all pay and allowances, and reduction to Private E-1.
B.
POST-TRIAL DEVELOPMENTS
1. Defense
counsel's
suicide
Two weeks after
trial, a senior officer in the
Army Trial Defense Service (TDS) visited
Prior
to meeting with Major S, the senior TDS officer visited the Staff Judge
Advocate (SJA) of the XVIII Airborne Corps.
The SJA showed the senior TDS officer a letter that had been
sent to the
convening authority by Appellant's parents.
The letter, dated four days after the conclusion of trial, alleged that Major
S had pressured the Appellant for sexual favors.
During
a June 18 meeting with the senior TDS officer, Major S asked if there
were
potential delays that might affect his reassignment.
In response, the senior TDS officer informed
Major S of the allegations made by Appellant’s parents.
Major S, who was upset, denied the
allegations. He expressed concern that a
long delay could cause the cancellation of his reassignment to
Early
the next morning, Major S took his own life.
In a package of materials prepared for his personal attorney,
Major S
left a tape recording made shortly before his death.
Although the recording did not provide
detailed information about his relationship with Appellant or his
conduct as
lead defense counsel, it contained the following statements:
I
fully deny that I ever forcibly had sex with [Appellant] . . . .
.
. . .
My
suicide is not an admission of guilt . . . .
.
. . .
I want you to know that my death is not an admission of any
of
the charges against me . . .
.
. . .
Concerning
[Appellant’s] parents' allegation, that I forced their son to have sex
with me,
the allegation is
preposterous
. . . .
2. Assignment
of a new
defense counsel and the request for a post-trial inquiry
In
July, the assistant defense counsel,
Captain L, determined that he should disqualify himself from further
representation of Appellant so that counsel not connected with
On
July 30, the acting SJA prepared the post-trial recommendation to the
convening
authority required by R.C.M. 1106. The
recommendation proposed approval of the adjudged sentence as modified
by the
pretrial agreement. The recommendation
did not discuss the allegations made by Appellant’s parents, the
suicide of
Major S, or any other intervening events.
Pursuant to R.C.M. 1106(f), the recommendation was served on
Appellant
and Captain H. The defense then
requested, and was granted, an extension of time to file post-trial
matters.
On
Defense
counsel filed another request on September 28, asking the convening
authority
to refer the matter to the military judge for a post-trial session
under
Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000). See
R.C.M. 1102(d). The defense asserted that
an inquiry by the
military judge on the record was necessary to determine whether
Appellant had
been denied his right to effective assistance of counsel in light of
alleged
improper activities by Major S. In an
analysis prepared for the convening authority, the SJA noted that the
defense
team had secured a favorable outcome for Appellant, that the asserted
improper
relationship had not created an actual conflict of interest, and that a
post-trial hearing would not serve any useful purpose in the absence of
specific allegations by the defense of ineffective representation. In accordance with his SJA’s
recommendation, the convening authority rejected the request for
further
proceedings before the military judge on November 2.
On
December 8, the defense submitted a post-trial memorandum under R.C.M.
1105 and
1106(f) for consideration by the convening authority.
The memorandum emphasized the defense's
continuing objection to the Government's refusal to release information
regarding the events surrounding Major S's suicide.
In addition, the defense contended that
Appellant had not received effective assistance of counsel and that the
deficiencies in representation rendered his guilty pleas improvident. The defense asked the convening authority to
order a new trial. In addition, the
defense proposed three alternative remedies: (1) issuance of an
administrative
discharge of Appellant in lieu of approval of the court-martial
proceedings;
(2) referral of the matter for review by the military judge in a
post-trial
session under Article 39(a); or (3) clemency through a reduction in
sentence to
time served, emphasizing a post-trial diagnosis of Appellant as
HIV-positive.
The
SJA advised the convening authority that the allegations of legal error
were
without merit and that the case did not warrant either corrective
action or
clemency. On December 11, the convening
authority adopted the SJA’s
recommendations and
approved the sentence as modified by the pretrial agreement.
3. The
order for an
evidentiary hearing
Over
the next two years, Appellant continued to challenge the representation
he had
received at trial. On October 26, 2000,
the Army Court of Criminal Appeals ordered an evidentiary hearing
pursuant to United
States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411
(1967). The DuBay
hearing was held on
C. THE
PERSONAL AND PROFESSIONAL RELATIONSHIP
BETWEEN
MAJOR S AND APPELLANT
1. The
sexual
relationship
Before
he assigned himself to represent Appellant, Major S was aware of
Appellant’s
homosexuality. According to Appellant,
Major S had assisted him on another matter six years earlier. The assistant defense counsel at
trial,
Captain L, testified at the DuBay
hearing that
it was not unusual for Major S to involve himself in a case of this
type
because Major S was very interested in cases involving sexual
misconduct or sex
of any kind.
Major
S initiated a sexual relationship with Appellant at the very outset of
their
attorney-client relationship in the present case. In
the fall of 1998, Appellant traveled to
Subsequent
to referral of charges for trial by general court-martial, Appellant
learned
that he was being transferred temporarily to
In
addition to his official duties, Appellant performed errands for Major
S and
frequently drove him to and from his home.
On more than one occasion, they engaged in sexual activity
during these
drives. Another sexual encounter
occurred in the TDS office. Although the
military judge presiding at the DuBay
hearing
expressed skepticism as to some of Appellant’s testimony, he
nonetheless
concluded that Major S engaged in six or seven acts of sodomy with
Appellant
during the period in which he served as counsel in the present case.
Major
S did not manifest his homosexual activity to his colleagues. At the DuBay
hearing, the judge advocate who served as trial counsel at Appellant’s
court-martial characterized Major S as “one of the last people I would
think”
was a homosexual. The assistant trial
counsel at Appellant’s court-martial described Major S as “a man’s man”
who
“during the course of plea negotiations, . . .
described . . . homosexual behavior in a
less than favorable light . . . .” The
assistant trial counsel added that “if you were to have asked that
question at
any point during the course of this, or any other case,
. . . I probably would’ve laughed
you out of the
room.”
2. The
professional relationship
The
DuBay record and the record of trial
reflect
various statements made by Appellant prior to adjudication of findings
and
sentence in which he expressed satisfaction with Major S as his
attorney, often
speaking in highly complimentary terms.
When he approached Captain L in January to request his
assistance with
the case, Appellant said that Major S was doing a “great job.” Later, Captain L recalled that Appellant had
stated “that he was very grateful for the work [Major S] and I were
doing and
that he was very happy with us.” When
asked by the military judge during the providence inquiry whether he
was
satisfied with his attorneys, he responded in the affirmative.
The
information developed in the DuBay
proceeding, however, indicates that Appellant
had significant misgivings about Major S throughout the court-martial
process. Early in December 1997,
Appellant contacted Mr. C, who worked on the staff of an organization
providing
assistance to service members affected by military policies related to
homosexuality. Because the organization
did not directly represent persons before courts-martial, Mr. C
referred
Appellant to a civilian lawyer, Attorney W.
Mr. C also contacted Attorney W directly and advised her that
Appellant
appeared to be “distraught about the nature of his relationship” with
Major
S. Mr. C also told Attorney W that when
he suggested to Appellant that he report his concerns about Major S to
the
appropriate authorities, Appellant “expressed great fear of potential
consequences should he expose Major [S’s] misconduct.”
Appellant
contacted Attorney W per Mr. C’s recommendation. Attorney
W did not discuss the underlying
court-martial charges with Appellant, confining the conversation to
“the
problem in his relationship with defense counsel, Major [S].” According to Attorney W, Appellant “was
extremely tentative in tone, his voice quavered, and he rambled. He described himself as frightened and
depressed.”
Appellant
told Attorney W that Major S had a reputation as “an extremely talented
defense
attorney.” Appellant “believed that no
one but Major [S] could help him be exonerated by the court.” Appellant added that Major S had told him
that he “would receive a very long prison sentence if he, Major [S],
were not
his defense counsel.”
According
to Attorney W, Appellant was torn by conflicting emotions.
On the one hand, the sexual relationship
initiated by Major S, who was married and had a son, “caused him a
great deal
of distress, anxiety, and fear.” On the
other hand, “he was fearful of discontinuing the sexual relationship or
reporting it because of his entrenched belief that he would spend a
lengthy
time in prison without Major [S] as his defense attorney.”
Attorney
W informed Appellant that Major S’s actions were “unethical and
illegal” and
that the sexual contact “was potentially criminal under Articles 125 or
134 . .
. , whether related to sodomy or indecent acts.” She
expressed concern “that this improper
relationship could impair [Major S’s] objectivity with regard to his
representation” of Appellant.
Appellant
“continued to plead that he believed that he would be unable to
‘survive’ this
court without the assistance of Major [S] and that he would simply find
himself
with inferior counsel were he to report Major [S].”
Attorney W attempted to convince Appellant
that he should seek new counsel, even if he did not report the
misconduct of
Major S to the authorities, but Appellant declined this advice. Appellant “reiterat[ed]
his complete trust and dependence on [Major S’s] legal skills, [and] he
informed [Attorney W] that he did not believe he could take the risk of
abandoning his [defense] counsel.”
According to Attorney W, “[i]t was
apparent to
me from my own experience as counsel and my conversation with him that
he was
incapable of rejecting [Major S’s] professional services or his
inappropriate
advances because of the deep need of [Appellant] to believe his defense
counsel
could ‘save’ him.”
Subsequent
to his contact with Attorney W in December, Appellant expressed concern
about
his representation during the initial pretrial sessions of his
court-martial. At the first pretrial
session on January 15 -- well after Major S initiated sexual activity
with
Appellant -- the military judge provided Appellant with the standard
advice as
to his counsel rights, and inquired as to who would represent him. Appellant responded:
I
would like to retain Major [S]; but, due
to the serious[ness] of the charges, I also
-- I am
new to the area, like I said. I just --
I just got here basically -- here this morning; and, if I had the means
-- that
I’d also like to pursue a civilian counsel and have that right to look
for that
civilian counsel. Like I said, I am not
from here. I am not familiar with the
area or the legal people who are out there. So, I would like to retain,
at the
time being, Major [S], but I want the election to seek out legal,
civilian
counsel.
He then focused on
the fact that the prosecution had assigned two judge advocates to the
case:
If
-- if -- if the government also has two
-- two prosecutors, I would ask that -- I’ve seen the case load, sir. I
have
some concerns that the defense counsel here on -- on Bragg -- being
short the
assigned attorneys that they have present -- I would -- I do not feel
that I
would get the full benefit of a -- of a government defense, with this
case
load. This is a [sic] serious charges; and if this is being the case, Major [S]
-- I know
he is overloaded. I -- like I said, I
may be from
The military judge
responded:
Well,
I can assure you that you would get a
first class representation from the defense office here at
The military judge
then directed Major S to assist Appellant in finding a civilian
counsel.
Shortly
thereafter, Major S met with a civilian lawyer, Attorney T, to discuss
an
unrelated case. Major S asked Attorney T
if he would consider talking to Appellant.
According to Attorney T, Major S stated that the case was
“enormously
complicated,” adding that he needed “extra help,” particularly in terms
of
investigating events in New England, as well as with negotiations with
the
convening authority aimed at having the charges dropped based upon
unlawful
command influence.
Attorney T met
with Appellant on the evening
of January 21 to discuss representation of Appellant at his
court-martial.
After obtaining assurances from Attorney T that any discussions
preliminary to
forming such an attorney-client relationship would be confidential,
Appellant
told the attorney that Major S had initiated a homosexual relationship
with him
shortly after Major S became his defense counsel. Attorney
T told Appellant that the
relationship was unethical, and that he would insist that the
relationship
cease if he became Appellant’s counsel.
Appellant responded that Major S was working hard and doing well
with
the case, and that although Major S was not his “type,” the homosexual
relationship had not become so burdensome that Appellant felt the need
to
terminate it.
Attorney
T raised the possibility of disclosing the details of the illegal
relationship
to military officials with a view towards obtaining a dismissal of the
case. Appellant responded that he did
not want to anger Major S or affect his career, and emphasized the
confidential
nature of the information.
During
further discussions the next day, Attorney T reiterated his view that
the
actions of Major S were unethical. He
added that he could take the case only if Major S was removed from the
defense
team. According to the attorney,
Appellant was anxious to ensure that he not tell anyone, including
Major S,
that Appellant had divulged the homosexual nature of the relationship. Attorney T maintained the confidence of their
preliminary discussions, and did not represent Appellant at his
court-martial.
As
the case moved towards trial on the merits in the spring of 1998,
Appellant
told a fellow soldier that “he was upset over the way his case was
being
handled” and revealed that Major S had required sexual favors of him. When asked why he did not get another
attorney, he replied that “he was between a rock and hard place . . . [He] was not happy with [Major S], but he had
gone so far with [Major S] that he could not turn back.”
His former roommate, in whom he also
confided, described him as “distraught” and fearful of retaliation or
additional charges if he revealed that he had been pressured into a
sexual
relationship. Appellant’s mother gave a
similar account.
Appellant
consistently maintained to his
defense team that he would not plead guilty to forcible sodomy. He asserted that he had not engaged in any
non-consensual sexual activity with the alleged victims.
Major S believed that the allegations of
forcible sodomy were false and also was inclined to view the case as a
matter
of consensual sodomy. His investigation
of the case led him to conclude that there were substantial grounds for
contesting the charges, taking the position that the evidence was
stale, the
victims had credibility problems, and there was evidence of improper
bias by
the command in terms of retaliation against Appellant for whistleblower
activities. Until shortly before the
case was resolved, he appeared intent on contesting all charges. As noted in Section I.A.2, supra, the
defense twice sought dismissal of the charges on procedural grounds,
which were
rejected by the military judge.
In
May of 1998, Captain L told Major S and Appellant that he viewed the
prosecution as having a strong case, and he recommended that the
defense
initiate discussions with a view towards obtaining a pretrial agreement. Major S by then had alienated the prosecution
to the point that he was not in a position to conduct such
negotiations, so he
delegated the task to Captain L. After a
week of negotiations, the parties reached an agreement, and Appellant
entered
his guilty pleas to two specifications of indecent assault.
The
military judge presiding over the DuBay
proceedings found that there had been a sexual relationship between
Major S and
Appellant throughout the period of representation.
The military judge concluded that the
relationship was not coerced, that it played no role in Appellant’s
decision to
enter guilty pleas, and that it did not create a conflict of interest. The military judge also concluded that the
defense team provided Appellant with effective counsel in terms of
filing
motions that challenged the government’s case, advising the Appellant
about the
state of the evidence, and negotiating a favorable pretrial agreement. The Court of Criminal Appeals, which agreed
with these conclusions, also concluded that Appellant waived any
conflict of
interest when he declined to follow the recommendation of two separate
civilian
attorneys to sever his relationship with Major S.
II. DISCUSSION
A.
POTENTIAL CRIMINAL AND ADMINISTRATIVE ACTIONS RESULTING FROM THE
CONDUCT
BETWEEN THE ATTORNEY AND HIS CLIENT
Major S, the
attorney, engaged in a course of
conduct with Appellant, his client, which exposed both of them to the
possibility of prosecution, conviction, and substantial confinement for
the
military crimes of fraternization and sodomy.
An officer who violates the custom of the armed forces against
fraternization with an enlisted person may receive a sentence that
includes
confinement for two years, a punitive separation, and forfeiture of all
pay and
allowances. See Article 134; Manual
for Courts-Martial,
Fraternization
and sodomy are not minor or obscure matters. The policies of the armed
forces
on both fraternization and homosexuality have been the subject of
significant
litigation and public controversy in recent years.
See, e.g., David S. Jonas, Fraternization:
Time For A Rational Department Of Defense
Standard,
135 Mil. L. Rev. 37 (1992); Jeffrey S. Davis, Military Policy
toward
Homosexuals: Scientific, Historical, and Legal Perspectives, 131
Mil. L.
Rev. 55 (1991). Less than five years
before Appellant's trial -- while both Major S and Appellant were
members of
the Army -- the executive and legislative branches of government
engaged in a
highly publicized review of the policies pertaining to homosexuality in
the
armed forces. See National
Defense Authorization Act for Fiscal Year 1994,
Pub.
L. No. 103-160, § 571(a)(1), 107 Stat. 1670
(codified
at 10 U.S.C. § 654); H.R. Rep. No. 103-200, at 286 (1993); S. Rep. No.
103-112,
at 263 (1993). This debate culminated in
the passage of legislation, signed into law by the President, which
declares
that “[t]he presence in the armed forces of persons who demonstrate a
propensity or intent to engage in homosexual acts would create an
unacceptable
risk to the high standards of morale, good order and discipline, and
unit
cohesion that are the essence of military capability.”
10 U.S.C. § 654(a)(15).
The legislation mandates discharge of any
service member who has engaged in a homosexual act, subject to narrowly
drawn
exceptions.
B.
ETHICAL CONSIDERATIONS
In
addition to potential criminal or
administrative action for misconduct as an Army officer, Major S
engaged in
conduct that subjected him to the possibility of additional
disciplinary action
for violation of the ethical rules applicable to attorneys in the Army. Rule 1.7(b) of the Army Rules of Professional
Conduct for Lawyers prohibits representational conflicts of interest,
specifying that “[a] lawyer shall not represent a client if the
representation
of that client may be materially limited . . . by the lawyer’s own
interests .
. . ." AR 27-26,
Army Rules of Professional Conduct, Appendix B (May 1, 1992). Rule 1.2(d) states that “[a] lawyer shall not
counsel a client to engage, or assist a client, in conduct that the
lawyer
knows is criminal or fraudulent.”
With
respect to sexual activity between attorneys
and clients, civilian jurisdictions have taken a variety of positions
on
whether there should be a complete prohibition during an ongoing
attorney-client relationship, or whether sexual activity should be
prohibited
only in specified circumstances. See, e.g., Abed Awad,
Attorney-Client
Sexual Relations, 22
J.
Legal Prof. 131 (1998). The
Army has endorsed the views of the American Bar Association Standing
Committee
on Ethics and Professional Responsibility, as expressed in Formal
Opinion
92-364 (1992) [hereinafter ABA Formal Op. 92-364].
See Army Office of the Judge Advocate
General Standards of Conduct Office, Professional Responsibility
Notes, 1993 Army Law. 48 (August 1993)(quoting
ABA Formal Op. 92-364 in full). The
may involve
unfair exploitation of the lawyer’s fiduciary position and presents a
significant danger that the lawyer’s ability to represent the client
adequately
may be impaired . . . . The roles of lover and lawyer are potentially
conflicting ones as the emotional involvement that is fostered by a
sexual
relationship has the potential to undercut the objective detachment
that is
often demanded for adequate representation.
the
client
may not feel free to rebuff unwanted sexual advances because of fear
that such
a rejection will either reduce the lawyer’s ardor for the client’s
cause or,
worse yet, require finding a new lawyer, causing the client to lose the
time
and money that has already been invested in the present representation
and
possibly damaging the client’s legal position.
.
. . enter a sexual relationship with a client when that would undermine
the
client’s case, abuse the client’s dependence on the lawyer, or create
risk to
the lawyer’s independent judgment . . . .")
C. THE
IMPACT OF CRIMINAL CONDUCT AND ETHICAL VIOLATIONS
ON THE CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL
Members
of the armed forces facing criminal charges, like their civilian
counterparts,
have a constitutional right to effective assistance of counsel. U.S. Const. amend
VI. Our Court reviews claims of
ineffective assistance of counsel de novo.
United States v. Key, 57 M.J. 246, 249 (C.A.A.F.
2002)(applying
the two-prong test established by the Supreme Court in Strickland
v.
Washington, 466 U.S. 668, 687 (1984): “First, the defendant must
show that
counsel’s performance was deficient. . . .
Second, the defendant must show that the deficient performance
prejudiced the defense.”).
An
attorney's violation of the canons of legal ethics does not necessarily
render
the attorney's assistance ineffective. Nix
v. Whiteside, 475
When
an attorney has engaged in criminal misconduct similar to the conduct
at issue
in Appellant’s trial, the federal courts have taken different
approaches on the
question of whether there is inherent prejudice or whether prejudice
must be
specifically demonstrated. Compare
In
United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988), our Court
considered the impact on the effective assistance of counsel in a case
where a
male civilian defense attorney engaged in a consensual sexual act with
his
female military client during the evening before the final day of her
trial. In those circumstances, our Court
declined to hold that every sexual relationship between an attorney and
client
necessarily creates a conflict of interest that violates a client's
Sixth
Amendment right to the effective assistance of counsel.
D. THE
COMBINATION OF POTENTIAL CRIMINAL LIABILITY
AND
ETHICAL MISCONDUCT
The
appeal before us presents a case of first impression, with no direct
counterpart in civilian law. The case
involves a volatile mixture of sex and crime in the context of the
military's
treatment of fraternization and sodomy as criminal offenses.
Defense
counsel’s conduct with his client placed both the attorney and client
at the
risk of criminal prosecution for violating the very article of the
UCMJ,
Article 125, that was the subject of the
present
case. Well before the onset of trial,
Major S repeatedly placed himself at risk of severe personal and
professional
consequences, including the possibility of confinement by
court-martial,
administrative termination of his military career, and professional
discipline. The extraordinary
pressure
under which he labored during his representation of Appellant is
underscored
tragically by the fact that he took his own life less than a day after
he was
informed that his superiors had learned of his personal relationship
with
Appellant.
Because
of counsel’s suicide, we do not
have the benefit of any testimony that he might have provided as to
what
consideration he gave potential defense strategies in this case. In the
absence
of such testimony, we consider the case from the perspective of a
military
defense counsel caught between the conflicting pressures generated by
his own
sexual misconduct and his professional responsibilities.
By his actions, counsel placed himself and
his client in a position where testimony by the client entailed
significant
risks. Any exploration into Appellant’s
conduct would have raised the possibility that the prosecution would
have
endeavored through cross-examination or rebuttal to elicit evidence of
similar
sexual misconduct. This would have
created the potential for exposing counsel’s sexual misconduct with
Appellant.
In
those circumstances, defense counsel faced a conflict between his
personal
interests and his responsibility to give thoughtful, dispassionate
consideration and advice concerning the range of options facing the
defense. We do not know whether the
defense
counsel in this case rejected any specific option on the grounds that
it was
not in his client’s best interest, or because it was not in his own
best
interest. We do know that when
confronted about the sexual misconduct with his client, it was only a
matter of
hours before he took his own life.
The
uniquely proscribed relationship before us was inherently prejudicial
and
created a per se conflict of interest in counsel’s representation of
the
Appellant. The facts of this case are
distinguishable from the limited, consensual relationship between a
civilian
counsel and his client that we considered in Babbitt, where we
declined
to find such a per se conflict. 26 M.J. at 158-59.
Here, we confront a course of conduct involving an attorney’s
abuse of a
military office, a violation of the duty of loyalty, fraternization,
and
repeated commission of the same criminal offense for which the
attorney’s
client was on trial. All of this is left
unexplained due to the attorney’s untimely death. As
stated by the Second Circuit in Cancilla,
the conflict created by this conduct was
“real, not simply possible” and “so threatening as to justify a
presumption
that the adequacy of representation was affected.”
725 F.2d at 870.
The
problems flowing from the conduct of
Major S are not overcome in this case by actions of the assistant
defense
counsel, Captain L, who negotiated the pretrial agreement.
Major S was the experienced, lead counsel in
the case. Appellant relied on Major S
and was entitled to the benefit of conflict-free advice from Major S
about the
range of alternatives before him. He did
not receive that advice.
With
respect to waiver, we note that the court below relied on Appellant's
discussions with two civilian lawyers, Attorney W and Attorney T, in
concluding
that he waived any objection to Major S as his counsel.
Both attorneys advised him to sever the
relationship because the behavior of Major S was unethical. Neither
attorney,
however, provided him with a detailed explanation of the relationship
between
the merits of the case and the attorney’s ethical obligations. Both focused on the matter from the
attorney’s perspective, not the client’s perspective.
Attorney W declined to discuss the substance
of the charges with Appellant, and Attorney T focused primarily on the
fact
that he would not take the case if Major S remained on it.
We do not fault either attorney for not
engaging in a detailed discussion with Appellant of the impact of any
unethical
behavior by Appellant on the merits of his case. In
both cases, the discussions between the
apparently distraught Appellant and the cautious lawyers simply did not
advance
to the point of forming an attorney-client relationship with respect to
the
charged offenses. Appellant's
conversations with the two civilian attorneys in this case did not
involve the
type of informed discussion of the specific pitfalls of retaining Major
S that
would demonstrate a knowing, intelligent waiver of the right to
effective
assistance of counsel. See
DECISION
The
decision of the United States Army
Court of Criminal Appeals is reversed.
The findings of guilty and sentence are set aside.
The record of trial is returned to the Judge
Advocate General of the Army. A
rehearing may be ordered.
1 A
constitutional
challenge to sodomy as a criminal offense in the military is currently
before
this Court in another case, United States v. Marcum, 59 M.J.
131
(C.A.A.F. 2003)(pet. granted), and we express no opinion at this time
as to
whether such a challenge would or should prevail. Our
discussion of the potential penalties for
sodomy in the current case reflects the provisions of the MCM
in effect
at the time of trial.
CRAWFORD,
Chief Judge (dissenting):
I
respectfully dissent from the majority’s
creation of a per se rule of ineffectiveness that is contrary to
Supreme Court
precedent. Mickens
v Taylor, 535
“In reviewing
claims of ineffective assistance
of counsel based on deficient representation, we must apply the
two-prong test
articulated by the Supreme Court in Strickland v. Washington,
466 U.S.
668 (1984).”
First,
the defendant must show that counsel's
performance was deficient. This
requires showing that counsel made errors so serious that counsel was
not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant
of a fair
trial, a trial whose result is reliable.
Strickland,
466
The
type of conflict presented in this case
is not unique to the military. In fact,
there have been many federal cases addressing ineffectiveness where the
client
and attorney were allegedly involved in a related criminal endeavor. See, e.g., United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984)(attorney
participated with client’s coconspirators in crime similar to
client’s); United
States v. Briguglio, 675 F.2d 81 (3d
Cir.
1982)(attorney under investigation by United States Attorney’s Office
prosecuting client). To assess
ineffectiveness in these cases, the courts have rejected a per se rule
and,
instead, have examined the record to determine if there was prejudice. Unlike the instant case, in none of the
federal cases was there the mitigating presence of an independent
counsel, or a
guilty plea tested through the extensive providence inquiry required in
military practice.
Appellant
in the case at bar has failed to
demonstrate any prejudice.
Despite his admission of guilt to the charge of indecent
assault,
Appellant availed himself of a pretrial agreement which reduced the
charges and
limited the duration of the adjudged confinement. Indeed,
Major S’s representation successfully
gave Appellant the benefit of his bargain and, as the lower court
noted, “it is difficult to imagine what more
[the defense] could
have done on [Appellant’s] behalf to produce a more favorable result.”
Moreover,
this Court has repeatedly emphasized the military judge’s obligation to
ensure
that guilty pleas are voluntary and pretrial agreements are well
understood. Rule for Courts-Martial
910. See, e.g., United States
v. King, 3 M.J. 458 (C.M.A. 1977)(holding
that the
military judge must confirm at trial that the written plea agreement
encompasses both parties’ understanding of the meaning and effect of
the plea
bargain). Indeed, “[t]he military
justice system imposes even stricter standards on military judges
with regards to guilty pleas
than those imposed on federal civilian judges.”
The
detailed providence inquiry in this case, informed by Appellant’s
binding
stipulation of fact, is abundantly clear that Appellant knowingly and
willingly
pleaded guilty to the charged offense, knowingly and willingly entered
the
pretrial
agreement,
and was indeed satisfied with the assistance of counsel that
accompanied his
decision to plead guilty and enter the pretrial agreement.
See United States v. Redlinski,
58 M.J. 117, 119 (C.A.A.F. 2003)(noting that
this Court considers the context of the entire
record to determine whether a plea was provident).
The military judge questioned Appellant, in
pertinent part, as follows:
MJ:
Anyone
force you to enter into this agreement?
ACC:
No, Your Honor.
.
. . .
MJ:
Anyone
made any promises to you that aren’t written into this agreement in an
attempt
to get you to plead guilty?
ACC:
No, Your Honor.
.
. . .
MJ:
. . .
Paragraph 4 [of the pretrial agreement] says that the offer to plead
guilty
originated with you; and, that no person made any attempt to force or
coerce
you into making this offer. That just
means it was your idea. Was it?
ACC:
Yes,
it was, Your Honor.
.
. . .
MJ:
Have
you had enough time to discuss this agreement with both of your defense
counsel?
ACC:
I
have, Your Honor.
MJ:
Are
you satisfied with their advice regarding this pretrial agreement?
ACC:
I am,
Your Honor.
MJ:
And,
again, I ask you, did you enter into the agreement of your own free
will?
ACC:
I
did, Your Honor.
MJ:
Did
anybody force you to do this?
ACC:
No, Your Honor.
.
. . .
MJ:
You
fully understand all of the terms and conditions [of the pretrial
agreement]
and how they are going to affect your case?
ACC:
I do,
Your Honor.
.
. . .
MJ:
Are
you satisfied [with your defense counsels’] advice with regard to your
case?
ACC:
I am,
Your Honor.
MJ:
Satisfied with them as your defense counsel?
ACC:
Yes, Your Honor.
MJ:
Are
you pleading guilty voluntarily and of your own free will?
ACC:
I am,
Your Honor.
MJ:
Anyone
made any threat or tried in any way to force you to plead guilty?
ACC:
No, Your Honor.
.
. . .
MJ:
Sergeant Cain, I find that your plea of guilty is made voluntarily and
with
full knowledge of its meaning and effect.
I
further
find that you have knowingly, intelligently and consciously waived your
rights
against self-incrimination, to a trial of the facts by a court-martial
and to
be confronted by the witnesses against you.
Accordingly,
your plea of guilty is provident. It is
accepted.
Given this Court’s
longstanding efforts to ensure that guilty pleas are sincere and
voluntary, and
that only legitimate, mutually-selected pretrial agreements are put
into
effect, this Court is remiss to reverse Appellant’s conviction – and in
so
doing negate his accepted guilty plea and rescind his binding pretrial
agreement – in the absence of any prejudice.
Finally,
even if Appellant had suffered prejudice, he affirmatively waived his
right to
conflict-free representation when he freely and deliberately entered
into a
relationship with his defense counsel. See
United States v. Mezzanatto, 513
·
Appellant was
33-years-old, a sergeant with
more than 12 years of service, with a GT score of 112 and a two- year
associate’s degree.
·
Appellant told
several people that he
continued the relationship only because he wanted defense
counsel to
continue to represent him. Appellant
considered defense counsel to be an “excellent, dynamic, and
aggressive”
attorney, and believed that because counsel was gay, like Appellant,
counsel
would fight even harder on Appellant’s behalf.
Appellant believed Major S was the best military defense counsel
available.
·
Appellant never told
defense counsel that
he had any reservations about their relationship. Appellant
testified at the hearing pursuant
to United States v. DuBay, 17
C.M.A. 147, 37
C.M.R. 411 (1967), “[N]ot once did I
protest what he
was doing to me or what he had me do to him.”
Cain,
57 M.J. at 735.
There was no doubt that Appellant wanted Major S to
defend him,
and did what he felt was necessary to secure Major S’s “excellent,
dynamic, and
aggressive” representation.
For
these reasons, I respectfully dissent
from the lead opinion.