United States v. Lee is an interesting and thoughtfully presented opinion, and worth the read.  Colonel Sullivan’s summary hits the substantive points, but some of the comments got me thinking.

I agree with the court that the counsel in this case should have discussed the conflict issue with the client.  But I’m not as far out on the “outrage” spectrum as the commentators about the prospect of the defense counsel taking the remnants of his docket with him down the hall to the trial shop.

Both the opinion and the comments bring to mind any number of military justice idiosyncrasies that a would be unacceptable anywhere else in lawyerdom.  Stewie, the 2L off the street wouldn’t answer a hypothetical about juror selection the same way Article 25 does, either.

I suspect that the Marine Corps officer in charge of this legal shop thought that the counsel involved were sufficiently professional–and honorable–to zealously fulfill their roles without fear of causing or suffering professional repercussions as a result of their performance.  Our system has a history of relying on the professionalism and restraint of its participants–even non-lawyer participants–where only structural protections would be acceptable in the civilian system.

I’m reminded of Justice Scalia’s discussion of our method of detailing military judges in his concurrence in Weiss v. United States.   The appellants in Weiss urged that the UCMJ’s protection of military judges from adverse actions based on the exercise of their judicial function was an inadequate substitute for an independent judiciary not subject to evaluation and detailing by the JAG.  Justice Scalia found that our history didn’t support the notion that all of our practices have to pass the civilian sniff test:

 [N]o one can suppose that similar protections against improper influence would suffice to validate a state criminal law system in which felonies were tried by judges serving at the pleasure of the Executive. I am confident that we would not be satisfied with mere formal prohibitions in the civilian context, but would hold that due process demands the structural protection of tenure in office, which has been provided in England since 1700, was provided in almost all the former English colonies from the time of the Revolution, and is provided in all the States today. (It is noteworthy that one of the grievances recited against King George III in the Declaration of Independence was that “[h]e has made Judges dependent on his Will alone, for the tenure of their offices.”)

Weiss v. United States, 510 U.S. 163, 198-99 (Scalia, J., concurring) (citations omitted) (emphasis and second alteration in the original).

So I’m not joining the commentariat’s collective facepalm.  Sometimes nonstructural safeguards–even ones that primarily function by relying on the honor and integrity of the system’s participants–are sufficient in our system. It was a mistake to not discuss the matter with the client.  But maybe someday this same opinion gets written about our practice of assigning counsel out of the same command to conflict cases.  Or having convening authorities pick members.  I see Lee more as evidence of a continued trend away from reliance on people and their integrity and toward process and structure.  Neither approach is perfect.

7 Responses to “Thoughts on United States v. Lee”

  1. John O'Connor says:

    Well said. I would imagine that the issue wasn’t presented to the client because *nobody* thought there would be any effect on the accused’s defense. My experience was that very few JAGs took trial tactics personally, so I bet the sense of the DC was that the TC he reported to would expect the DC to zealously represent his client.

    That’s not an excuse; the issue should have been raised with the accused. But it is an explanation why something that seems so obvious to us all just flew past everyone at the time.

  2. Article16 says:

    Talk about structural safeguards, I don’t see this happening in other services. Speaking at least for how I understand the Army, the only way your defense counsel is not going to be wearing a trial defense patch is if there’s an individual military counsel request to the follow-on command.
    No offense to anyone, but I detect what might be called Marine Corps hubris in this fact pattern.
    As to the commentariat’s facepalm…I guess you also have to include the unanimous panel that called it “disturbing[]”.

  3. stewie says:

    This isn’t about Article 25, it is about professional responsibility rules. If you can find one in either a state bar or one of the service regulations that doesn’t say you should notify the accused of actual conflicts, please let me know.

    Not being snarky, maybe it’s there and I missed it. Most 2Ls have taken their Professional Responsibility classes by then, thus why I focused on them in my remark.

  4. Bill C says:

    I tell my clients how the members are selected. I would also tell them if I worked for the prosecutor. I don’t think this has as much to do with whether prosecutors take things personally. It has to do with the perception of the accused and the general public.
    Unfortunatley, I don’t share the optimism that “nobody thought it would be an issue.” I am more pessimistic. My sense is that no one wanted to tell the client because they knew he would balk. Better to “go along to get along.” And unfortunately I know way too many prosecutors who do take things personally.

  5. Peanut Gallery says:

    Mr. Fulton, I am sympathetic to the notion that we should give our trial attorneys/ Marine officers “special trust” and confidence. But I am also a believer in the full disclosure and “trust but verify” methods. Isn’t a case like this precisely why we have Art 31b warnings and 6th Amendment rights advisements required as procedural safeguards? Because somewhere down the line, someone is going to act with less-than-honorable motives and then we’ll have a real mess to clean up.

    I’m all in favor of giving the bebefit of the doubt, but not at the expense of the rights of the accused.

  6. Marcus Fulton says:

    Not sure we disagree, Peanut.

  7. GRH says:

    Sounds a lot like U.S. v. Jenkins. “We cannot find an error, but we get to bounce things we do not like because we have awesome plenary power.”