When I was a wee lad, I was part of the appellate team representing Sgt Clayton Lonetree, who had been convicted of providing information to Soviet agents while Sgt Lonetree was assigned as an embassy Marine Security Guard. One of our claims on appeal was that Sgt Lonetree had received ineffective assistance of counsel because his civilian defense counsel were more interested in using his case to support a political agenda — the American Indian rights movement — than protecting their client.
CMA found IAC in an opinion written by Judge Sentelle sitting by designation. Here’s how Judge Sentelle set the IAC scene:
Representing Lonetree at trial were civilian counsel William H. Kunstler and Michael V. Stuhff, as well as military counsel Major David N. Henderson and Captain Andy Strotman. Lonetree asserts that his civilian counsel erred by failing “to explore the possibilities of a pretrial agreement, negotiate with the Government over the terms of such an agreement, and present a potential pretrial agreement to their client for his consideration.” Brief for Appellant at 18.
As the basis for his claim, Lonetree details civilian counsels’ total hostility to entering a plea bargain that might have resulted in a 10-, rather than a 25-, year sentence. Lonetree’s affidavit describes his civilian counsels’ assurances that he was not “legally guilty” and that he would prevail at trial, as well as their attempts to convince Lonetree that the Government’s case was racially motivated. The affidavit also relates how civilian counsel tried to poison Lonetree’s relationship with military defense counsel, particularly in regard to any plea agreements that Major Henderson might discuss. 31 MJ at 873 n.21. Additionally, Major Henderson provided an affidavit in which he voiced his frustration with the unreasonable views of Lonetree’s civilian counsel regarding a plea agreement. Id. at 875. Though Lonetree faced life imprisonment if convicted as charged, civilian counsel apparently only “wanted to deal in terms of one or two or maybe three years,” while Major Henderson believed, based on his discussions with trial counsel, that negotiations should begin in “the realm of 5 to 10 years.” Id. (quoting Henderson’s affidavit).
United States v. Lonetree, 35 M.J. 396, 412 (C.M.A. 1992).
Judge Sentelle observed:
Lonetree offers us colorable claims consistent with the existing record that civilian counsel offered him bizarre and untenable advice, consistently attempting to instill in him a distrust of his military counsel and consistently inducing him away from a plea bargain assuring him substantial leniency in the face of overwhelming evidence of his guilt. If true, it is more than a theoretical possibility that a DuBay hearing might yield a finding that civilian counsels’ level of advocacy fell “measurably below the performance … [ordinarily expected] of fallible lawyers.” See United States v. DiCupe, 21 MJ 440, 442 (CMA), cert. denied, 479 U.S. 826 (1986).
Id. at 413-14.
CMA emphasized that the issue affected only the sentence: “[W]ith Stuhff and Kunstler’s counsel he was found guilty. Without civilian counsels’ alleged ineffective assistance, he might have pleaded guilty instead. Either way, he stands convicted. It is only the sentence that may be affected.” Id. at 414.
And CMA emphasized that not every case of bad advice would result in appellate relief:
We further wish to make clear that we do not intend to establish a precedent that every defendant alleging bad advice is entitled to a DuBay hearing or a rehearing. In this case, though, Lonetree offers a colorable scenario consistent with relief-worthy ineffective assistance and a record consistent with the claim. Given the degree of cooperation afforded by Lonetree to all authorities before civilian counsels’ intervention, and especially given the fact that his crimes came to light only by his own voluntary disclosure in the first instance, it seems at least a colorable argument that it was only civilian counsels’ advice and its consequences that left the young Marine with so heavy a sentence.
Sgt Lonetree ultimately received a five-year confinement reduction as a result of that ruling.
The responses of the two civilian defense counsel were interesting. Mr. Stuhff cooperated with the government during the appeal, though his bizarre affidavit explaining his trial-level decisions seemed to us to implicitly support our IAC claims; anyone who wrote an affidavit that bad probably provided an objectively unreasonable level of representation. But Mr. Kunstler took a different approach: “Mr. Kunstler, the New York lawyer associated with politically charged trials, has said that as a matter of principle he would not dispute claims of ineffective counsel. ‘If they can win their case by proving any dereliction on my part, it would be all for the good and I cheer him on,’ he has said.” Neil Lewis, Convicted Marine’s Legal Advice to Be Reviewed, N.Y. Times, Oct. 4, 1992.
Obviously one enormous difference between Lonetree and Lakin is that in Lonetree, the “bizarre and untenable advice” advice concerned how to proceed after charges while in Lakin, the apparently “bizarre and untenable advice” concerned the commission of the crime itself. And, of course, one doesn’t have a Sixth Amendment righ to counsel when deciding whether to commit an offense. So Lonetree isn’t directly applicable to the Lakin scenario. Nevertheless, it provides some interesting parallels that LTC Lakin’s new counsel may wish to explore.