United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009). Chief Judge Effron writes for the majority, holding that “the convening authority erred in treating one of Appellant’s defense counsel as not properly detailed,” but concluding that the error was harmless. Judge Ryan concurred in the judgment.
After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol (Jon Shelburne) as a defense counsel in the case. The Reservist LtCol was on the East Coast and the case was being tried in Hawaii. The CA balked at providing funding for the Reservist’s representation of the accused, contending that there was no authority for the Chief Defense Counsel of the Marine Corps to detail the Reservist to the case. When the Reservist sought a continuance of the Article 32 investigation, noting the funding problem, the CA responded that the Reservist “is not detailed as counsel and has no authority to act in this matter.” The Reservist subsequently showed up at the 32. The IO refused a defense request for a continuance, but allowed the Reservist to participate as defense counsel over the trial counsel’s objection. When the two defense counsel tried to submit a PTA proposal to the CA, the CA refused to accept it, maintaining that the Reservist hadn’t been properly detailed. The inexperienced active duty counsel then resubmitted the proposal without the Reservist’s name on it, at which point the CA agreed to consider to PTA proposal, which the CA ultimately denied after refusing to meet with the Reservist.
The case was then referred to a court-martial. A military judge refused to allow the Reservist to participate in an 802 conference. Another military judge presided over the court-martial. He ruled that the Reservist had been properly detailed and that the Chief Defense Counsel of the Marine Corps had the authority to detail him. The military judge denied a UCI motion and a motion to reopen the Article 32 due to the limitations on the Reservist’s ability to represent the accused at that point. While the motions were pending, the CA met with the Reservist concerning a PTA and ultimately the parties entered into a PTA.
During the plea inquiry, the military judge advised the accused that by entering into the PTA, he was giving up his right to challenge the denial of the motion for a new 32 and he was waiving any defect in the 32.
CAAF treated the military judge’s ruling that the Reservist had been properly detailed as the law of the case. CAAF then ruled:
[T]he convening authority erred by restricting the role of Appellant’s detailed defense counsel 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 LtCol Shelburne’s initial detail as Appellant’s defense counsel. These actions violated Appellant’s rights under Article 27, UCMJ.
CAAF also concluded that “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.”
CAAF then assessed whether the accused had been prejudiced by the error. First, CAAF held that there was not a denial of counsel rising to the level of a structural error. The court therefore had to determine whether the error was harmless. The majority then assumed without deciding that the error constituted a Sixth Amendment violation and performed a constitutional harmlessness test, concluding that the error was harmless beyond a reasonable doubt.
Judge Ryan wrote separately. She concluded that the error in this case was statutory and was not a constitutional violation. She pointed out that at all relevant times, the accused was represented by a detailed defense counsel who was recognized by the government and there is no claim that that counsel’s representation was deficient. She observed that “a military accused has neither the absolute right to detailed counsel of choice, nor the right to the assistance of two counsel.” Judge Ryan concluded that “there is no basis for even suggesting that Appellant’s Sixth Amendment rights were violated by the limitations placed on Lt. Col. Shelburne.”