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.