The eighth story in our top ten countdown was initially broken by our own Phil Cave, who can now add breaking news reporter to his list of many other talents. On May 2, Phil reported that Marine Corps CID agent had tossed the office spaces of the Marine Corps Defense Services Organization at Camp Pendleton in search of a client’s cell phone that allegedly contained evidence for a pending case. While initial details of the search were unclear, the story was eventually picked up by mainstream media sources and over the course of the next two or three months we learned more details about what had transpired (see here, here, here and here).

As it turned out, a Marine at Camp Pendleton was being prosecuted for alleged drug offenses, sexual assault, kidnapping, and affiliation with an outlaw motorcycle gang. His defense counsel had submitted a motion to have her client removed from the brig and included with it images of supposedly exculpatory text messages between her client and an alleged victim in the case. These text messages were obtained from the client’s cell phone, which was in the defense counsel’s possession. The government had apparently asked the defense counsel repeatedly to turn over the phone, and she had declined on attorney-client privilege grounds. Rather than going to the court to sort it out, the government went with the nuclear option of seeking and obtaining a search authorization to seize the cell phone from the defense work spaces. Hilarity did not ensue.

From reports of the search, it appears that four armed CID agents, escorted by trial counsel, showed up in defense spaces at Camp Pendleton, blocked defense counsel from leaving and proceeded to rifle through their offices in search of the cell phone. It also appears that the cell phone was actually located fairly quickly, within twenty minutes, but the search continued for over two hours and involved the offices of defense counsel with no connection to the case. The ostensible reason for the continued violation of defense spaces was that the defense counsel would not confirm that the found cell phone belonged to the client in question.

The fall out from this search included at least one military judge ruling that the search, instigated by trial counsel, constituted apparent unlawful command influence. The military judge ordered the supervisory trial counsel off the case and several others cases and placed other restrictions on him. This ruling resulted in that supervisory trial counsel ultimately being reassigned to a different billet. Additionally, there were multiple motions for relief in unconnected cases, due to CID agents going through defense case files, although an internal investigation concluded that no defense information was compromised. However, that internal determination was likely cold comfort to any accused with a case from that office, or the defense counsel from that office trying to build trust with their clients.

While this incident succeeded in making the Marine Corps legal community look like amateur hour at a time when military justice was already under heightened scrutiny, it was not a total loss, at least as a learning point. Judging from the extensive comment sections on the posts about these articles, this incident gave those of us in the cheap seats an opportunity to review and think about the obligations of a defense counsel with regard to physical evidence, and particularly the ethical and legal perils of taking possession of physical evidence from clients. Additionally, this case was somewhat of an atypical one for a search of a defense attorney’s office, since it does not appear that the defense counsel in question had any connection to the alleged misconduct. Thus, it also gave us the opportunity to think about and discuss when and how it is appropriate for the government to take the extreme measure of searching defense counsel offices.

Finally, while this is somewhat reading between the lines, this situation seems to be a case study in what happens when the prosecution shop and defense shop can’t get along. It’s hard to believe that this debacle could not have been avoided had there been a good working relationship between the two sides. This case is a good reminder that we as attorneys have a duty to represent whichever side we are assigned to zealously, but not at the cost of professionalism and collegiality. Situations like this one invariably seem to result from an atmosphere where the opposing parties have lost the ability to disagree about an issue without ascribing false and improper motives to the other side. This job is a difficult one already, and that type of attitude only makes it more difficult. That reminder alone is reason enough for this story to make the top ten list for 2014.

5 Responses to “Top Ten Military Justice Stories of 2014 – #8: Search of Camp Pendleton Defense Counsel Offices”

  1. Dutiesofanattorney says:

    It is incorrect that zealous representation should never interfere with collegiality. While ordinarily beneficial, collegiality should never interfere with a prosecutor’s duty to seek justice or defense counsel’s duty of zealous representation. These obligations, of course, are not mirror images.
    As an example of collegiality gone awry, the LSSS-E OIC’s highly unusual “character” testimony on behalf of MJ LtCol Palmer informs us how an attorney may confuse collegiality with professionalism.

  2. Sam Adams says:

    Dutiesofanattorney, I understand your point, but I think it depends on how you define collegiality. It’s defined by Merriam-Webster quite simply as the cooperative relationship between colleagues. I don’t see how a) recognizing that the attorney on the other side is in fact your colleague or b) having a cooperative relationship with him or her would have an impact on zealous representation. Certainly the relationship is not cooperative in the sense both sides have different goals in litigation. But, it can be cooperative in the sense that both sides understand and respect the roles that each side plays in an adversarial system and plays within rules set up for that system. I think I’ve just seen far too much of the former lately, i.e. a lack of respect for those on the opposite side of the courtroom. 

  3. stewie says:

    Agreed.  All collegiality is, is respect for the role of the other side, being cooperative where you can (and where ethics allows), and not reducing your interactions to the negative, personal level.  None of that is affected at all by zealousness.

  4. Dutiesofanattorney says:

    Agreed that mutual respect and professionalism should be maintained at all times, but they differ in important ways from collegiality. It is possible to be respectful and professional as a defense attorney and uncooperative throughout the trial process. There are times when this would be beneficial to a client, others that it would have an adverse effect. Defense counsel´s behavior should be guided by this calculus, not by desires of supervisory staff to maintain peace in the legal community.
    Going back to the intent of my original comment, I believe that a misunderstanding of the duties of both defense and trial counsel is contributing to the unprofessional behavior. Prosecutors do not have a duty to zealously represent a client as stated by this story, whereas defense counsel do. I understand that Sam Adams wrote this in a slip of the tongue, but this is an important point.
    As another example, we see prosecutors objecting to the foundation of exculpatory evidence that was provided by the government in discovery. They will tell you that they are zealously representing the government. Because of his different duties, it is entirely appropriate for a defense attorney to object to government evidence on purely procedural grounds. For better or worse, defense counsel do not represent the interests of justice.
    Failing to understand these duties, I believe, is leading to the resentment and personal confrontation we are seeing.

  5. stewie says:

    I don’t think collegiality means what you think it means.  You can have a cooperative relationship and do justice and zealously represent your client.  Side note, as a TC you can both zealously represent the government AND do justice (albeit whenever the latter conflicts with the former, you have to side with the latter and sometimes TC can mess this up).  Collegiality IS mutual respect and professionalism. 
    Of course, certainly anytime duties are misunderstood, that’s a problem, no argument there.