In an unpublished opinion in United States v. Edmond, No. 201200168 (N-M. Ct. Crim. App. Apr. 30 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses a midshipman’s 2011 court-martial convictions for making a false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact, in violation of Articles 107 and 120 (press accounts here and here), after concluding that “the appellant was not afforded effective assistance of counsel as guaranteed by the Sixth Amendment.” Slip op. at 19.

Specifically, writing for a unanimous panel, Chief Judge Mitchell finds that:

In the appellant’s case, the evidence was not overwhelming. While there was some medical evidence of bruising supporting the alleged victim’s account of the sexual contact, this case ultimately boiled down to the issue of credibility. It was on this point that the trial defense team failed in several significant ways summarized as follows:

(1) The defense team failed to effectively cross-examine the alleged victim in that it had evidence of inconsistent statements made by XM during the Article 32 Investigation that differed significantly from her testimony at trial but had no mechanism in place to challenge her on cross-examination;

(2) While the trial defense team planted the seed in the minds of the members that the alleged victim told MIDN B yet another account of the sexual assault, they forgot to follow up with this line of questioning after calling her as a witness;

(3) The trial defense team’s attempt to bolster their client’s credibility had the opposite effect when they asked MIDN B if she thought the appellant was trustworthy and she responded in the negative; and

(4) Finally, while we do not second-guess the defense’s tactical decision to put the appellant on the stand, the record strongly suggests that they did so without fully considering or advising him of the ramifications of doing so, including opening the door to the use of his previously suppressed statement, which was replete with inconsistencies, as impeachment evidence.

Based on the foregoing, we have little difficulty concluding that the trial defense team’s level of advocacy fell “measurably below the performance [] (ordinarily expected) of fallible lawyers.” Polk 32 M.J. at 153 (citation omitted).

Slip op. at 17-18. The CCA authorizes a rehearing.

118 Responses to “The NMCCA reverses a Naval Academy sexual assault conviction due to ineffective assistance of counsel”

  1. PassingThrough says:

    What a Charlie foxtrot. 
    1) Why did Appellate Defense Counsel initially only submit this “on the merits?!”
    2) Where was Trial Defense Counsel’s command and DCAP in all this?  He shouldn’t have been detailed to the case in the first place as well as given better supervision.
    3) Sounds like Trial Defense Counsel also failed to put in the time – did he murder board the opening?  Interview witnesses before placing them on the stand?
    4) Isn’t there an obligation for Trial Counsel to raise the issue with his/her chain of command?  Seems like there should’ve been a CO-to-CO phone call here.

  2. OfCourse says:

    PassingThrough… you fit perfectly on CAAFlog (re: #4 of your comment).  The case is reversed on IAC grounds but let’s find a way to blame the TC, because, as we know from reading this blog, everything boils down to that dirty TC who will do anything to get a conviction, including ensuring the accused had a bad defense counsel.

  3. PassingThrough says:

    @OfCourse – “I got 99 problems… and they’re all Trial Counsel’s.”

  4. RY says:

    I appreciate your point but I also think PassingThrough was not blaming TC as much as asking about what we “should” expect professionally from TC and DC.  I think it is a good question: when, if at all, should counsel disclose to opponent’s superiors concerns about deficient performance and in what details?  TC is supposed to be about justice and not just winning cases.  Some Judges step in when they see a disaster because they want to preserve a case.  Should TCs or DCs step in?  Have we become so accustomed to the rarity of valid IAC claims and so averse to using the “e” word that we don’t do enough? 
    I don’t think DCs should because there’s a conflict in doing so during trial but that doesn’t foreclose post-trial feedback.  In my experience, cross-feed of opinions has largely been about the personal relationships between superiors.  As a senior defense counsel, I would get calls from Deputy SJAs about my ADCs and I would share my thoughts about particular trial counsel.  For example, we had a junior TC get mad at one of my ADCs for not providing notice that he was putting his client on the stand.  The question remains, however, when, if at all, should TCs act? 
    IMHO, I think TC should have (and may have but it’s not noted in the opinion) at least voiced concern when DC put a witness on the stand for character for truthfulness and it totally backfired.  Unless that was a total surprise, that should have prompted some concerns because the result screams ineffectiveness.  Same for Art 39a statements about evidence DC wanted to introduce but never remembered to do so.  I would have contacted DC’s supervision and voiced some concerns before trial was over.  This case was reversed on cumulative error.  If any of these were corrected, the result may have been different.  I know it’s hindsight but surely TC saw the ship sinking not so much from the weight of the evidence as from DC ramming into icebergs. 

  5. Monday morning QB says:

    RY:  If are going to go that far – to place a duty on the TC to raise ineffectiveness by his/her opponent (which by the way might be a good subject philosophically, but is ridiculous in the real world) – then why isn’t the military judge, who is supposed to be the most experienced person in the room, the one who should raise it first?  I think if a judge sees this going on he should have the discretion to just declare a mistrial.  And as for whether jeopardy attaches, as long as the mistrial does not result from government misconduct and it is for the benefit of the accused, then there should be no issue with retrying the accused. 

  6. Another Perspective says:

    I really hope that the record on appeal contains something more enlightening than the trial transcript with regards to #4) of the court’s reasoning.  If there is not some affidavit or other evidence submitted post-trial regarding the accused’s testimony and pretrial preparation, it would be particularly disturbing for the court to hold DC ethically responsible for the accused exercising their absolute right to testify.  Last time I checked, that was not a DC’s decision.  Absent some more evidence than the trial transcript, to PRESUME that DC did not properly advise the accused of how stupid that decision may be or what the cross would look like seems like a big leap to justify an ethical violation a licensed attorney.
    I cannot argue against the first three reasons for the decision.  DC screwed those up.  I find it hilarious that this group still looks to TC or anyone else for responsibility there.  Just like some TC are terrible.  Some DC are too.  Accept it.

  7. RY says:

    I never said anything about a duty.  On the contrary, I asked about what we should desire from a professional standpoint. 
    WRT to double jeopardy, I agree it can be retried.  The issue is that rehearings suck, especially when they could have been prevented.

  8. Tami a/k/a Princess Leia says:

    Good grief, doesn’t anyone read the opinion before commenting?  There WERE affidavits AND a Dubay hearing!  Both defense counsels had no experience litigating and very little help from their superiors (who did the “we’ll help you if you ask for it,” total BS IMO).  Obviously having the Senior Defense Counsel in the courtroom watching the trial didn’t help at all.  Recommending remedial training?  How about kicking LT S out of Defense Services and giving a negative evaluation for dorking things up this bad.
    The decision to testify belongs solely to the accused.  But before the accused makes that decision, he’s entitled to competent advice from his attorney about whether that’s a good idea.  And arguing for a dismissal after your client says he wants to stay in the military?  WTF!  This was before the “mandatory minimum DD/dismissal” rule.
    I don’t see how a TC has an obligation to point out his opponent’s lawyering skills suck, especially when the MJ already sees that.  As far as an MJ’s discretion to grant a mistrial, the MJ has it under RCM 915, and can grant a mistrial sua sponte.

  9. k fischer says:

    Most likely, we wouldn’t have these issues if TJAGS and Congress cared as much for the accused’s rights as they did for complaining witnesses and created 25 Special Accused Defense Counsel. 
    And, I’m not understanding how the placing of the appellant on the stand wasn’t harmless error, as we all know if he didn’t take the stand, then he would have been convicted anyways.  My affidavit would have stated, “Yes, I knew that he made previous inconsistent statements, but I told him that my experience has supported this premise:  I’m 99% sure he will be convicted if he doesn’t take the stand.”  Does anybody know if he attempted to explain away his inconsistencies?
    Does anyone think the outcome would be different if appellant was a West Point cadet and ACCA was reviewing the conviction?

  10. k fischer says:

    I agree.  I’m not going to call out a DC for lack of competence in their first trial if I am a TC and I don’t think I’d be dirty if I chose not to.  As a TC, I would err on the side of being professional and accusing the counsel across the aisle of being incompetent just seems a little unprofessional to me.  And, I’m not so sure that I would blame a military judge for failing to call out counsel or ordering a mistrial.  Really, the DC’s supervisor is the issue.  Maybe these two DC’s were the only ones still around after everyone PCS’d.  Maybe the more senior people kept getting trials, which is why they didn’t have a contested CM under their belts.  I think someone upstairs should have ensured this cadet got someone who at least appeared adequate and should share some of the blame. 
    Anyone else notice and appreciate how Defense counsel were really, really forthcoming with their deficiencies?

  11. stewie says:

    Yeah, the responsibility doesn’t lie with the TC/SJA, it lies with three groups of people:
    1. The DC.
    2. The DC’s supervisory chain. These are the main culprits IMO.  You cannot put this junior of folks with no supervision/guidance.  How do you not pair at least one of the junior officers with a more experienced one??
    3. To a minor extent, the MJ. I think at some point, the MJ maybe needs to call the RDC and explain just how badly things are going and that maybe there’s an issue here.  Although, I’m not sure if mid-trial is the right time to do this. I hope it happened after trial for sure.  Mostly this is a TDS leadership failure…these counsel were set-up for failure (as was this client).

  12. Dew_Process says:

    If the professional obligation of a Trial Counsel is to seek “justice” and not convictions, then there is surely a duty for a Trial Counsel who witnesses a miscarriage of justice in the making, to object.  There is an extensive Record on the IAC issues, to include a DuBay hearing. Such was this case and there was no apparent objection(s) by TC – at least not referenced in the appellate decision. But, certainly the MJ saw this train wreck happening and while prodding the defense to get better prepared – when it was obvious that they were not – he should have abated the proceedings if not declared a mistrial. It is a shocking decision in many ways, especially since those of us who do post-conviction work see all too many similar scenarios.  Here, e.g., we have the following from the N-M CCA:

    [T]he appellant was represented by two defense counsel who between them had litigated no contested courts-martial, let alone a forcible rape case involving expert testimony and forensic evidence.
    * * * * *
    [T]he appellant argues that the trial defense team had impeachment information and failed to use it in the cross-examination of Nurse B, the nurse who examined XM after the alleged sexual assault. Trial defense counsel had knowledge that Nurse B had a federal conviction for conspiracy to pass counterfeit United States currency, and knew that conviction was admissible for impeachment. DuBay FOF 35, 98; DuBay Record at 101-02. The trial defense team not only failed to obtain a certified copy of the conviction to use at trial, they also failed to confront Nurse B about its existence during cross-examination.
    * * * * *
    With the defense’s theory that this was a case of consensual sex, credibility was the critical issue for both sides. In an attempt to bolster his client’s credibility, the trial defense counsel called MIDN D, the appellant’s ex-girlfriend, to the stand and asked her if she trusted the appellant; she answered that she did not. Record at 735. The impact of this testimony was so damaging that the military judge halted the examination sua sponte, calling an Article 39a session in which he told LT S, “I just watched you take a broadside hit,” directed that he speak to his supervisory counsel and offered to recess the court for the day in order for counsel to take time to prepare. [emphasis added]

    Add to that, DC’s argument for a Dismissal after the Accused testified that he wanted to remain in the military, and you have a recipe for disaster.

  13. The Silver Fox says:

    “Your Honor, defense counsel is being ineffective.  I’d like an Art. 39(a).” 

  14. DCGoneGalt says:

    Uggggh, I got to this party late.  Absent drug/alcohol/mental issues by the defense counsel there is no reason for trial counsel to step in.  Period.
    This would be one I would go out drinking with the defense counsel afterward and chat about what went on and maybe take it to the SJA if I was concerned there was an issue because I certainly think the best junior litigators should be at defense counsel position (with more senior talented litigators at the supervisory positions on both trial and defense).  I know those conversations happen both ways up the chain and I think that is what RY was suggesting.  Granted, I didn’t read all the documents associated in this case (I had real work to do today . . . it is annoying)  but what is a trial counsel supposed to do given these issues?
    1) Not questioning the VIC on prior inconsistent statements at the Art 32:  Not my problem.  Ever.  Although, off the top of my head I can’t think of a reason why DC wouldn’t do this.
    2)  Not following up with VIC on another account of how the assault occured:  Again, not my problem.  Maybe there was an explanation for why the VIC gave a different story or an explanation that would bring counter-intuitive behavior into play and the defense wanted to avoid it.  Again, who cares?
    3)  Asking the credibility bolstering question to the VIC:  Not my problem.  Don’t ask a question you don’t know the answer to.  If she said he was truthful in an interview then confront her with the prior statement.  If you don’t I am assuming you asked her for the first time on the stand and got a surprise.
    4)    Putting the client on the stand:  In every situation TC must be able to assume DC has advised the client.   If they didn’t there is no, absolutely no, responsibility to raise the issue.  People make dumb decisions all the time, many times dumb decisions (regardless of legal guilt) which led them to trial in the first place, and that includes the decision to testify. I am sure there were times when a client of mine took the stand where TC were thinking “He’s putting the guy/gal up!?! What a moron, I got cross!!!” But it is wholly up to the DC to fully advise someone on their client and then the client makes the decision. Trial counsel is assuming the defense counsel met a certain level of competence and they are entirely right to do so. 
    Monday Morning QB is spot-on but I still feel queasy about anything other than the military judge ordering a mistrial for only the most obvious of ineffective counsel performances.  And I don’t think this rises to that level because IMO it is the “take the stand” decision that put this over the top and everyone in the trial process has to have the ability to assume the client was advised appropriately.  A military judge has the responsibility to ensure the accused gets a fair trial and if the defense counsel is so bad that the judge feels the need to step in . . . I have issues with that because how does the judge inquire into cross-examination strategy/putting the client on the stand/etc. without appearing to be a pseudo-defense attorney?  Honestly, what should the judge have done in this case?  I would say there is no reasonable manner to do anything for the first 3 issues and on the fourth issue do we really expect the judge to start inquiring with the defense counsel as to whether the client was fully advised and then saying “Are you sure?”.  With that being said, I can definitely see judges being more hands-on in this unlikely scenario, especially now that there is a reminder that there is a risk of reversal.   
    I have found myself agreeing with Silver Fox too much recently.  I think I need a whiskey-driven soul-searching session to re-discover my inner defense hack.

  15. stewie says:

    Dew_Process, respectfully, even if one concedes, in theory, that there is some line at which point a TC steps in and says Your Honor, this is a travesty, we can’t go forward I’m going to suggest to you that this case is not THAT line.  Poor decision-making by a counsel can be based on bad choices by the counsel OR by the accused, even after proper advice.  The TC is not much more senior than the DC, expecting them to know where the line is where they should effectively ask for a mistrial is fairly unreasonable.  Particularly when the REALLY experienced person in the room, charged with protecting the accused, has done/said nothing in that direction.
    If we had 20-year prosecutors, maybe.  They’d have the experience and wisdom to know where the line, roughly, is.  An O-3 who’s done criminal law a year, maybe two, has neither. It’s simply not his or her job, and he or she does not have the experience even if it were.  That’s why we have judges.  Now, if the DC comes in drunk then, yeah, I think TC would and should say look, we gotta do this over, we can’t go forward with this situation.  But bad tactical decisions, or lack of preparation? No, I don’t see it.
    Now, I think the MJ has a definite role here, and perhaps if the COJ or STC or SVP is watching the trial, and they are concerned about DC performance, then I support saying they should at least raise it to the SJA to raise to the RDC/SDC level.  But the MJ should be the one that determines whether performance is so deficient the trial cannot continue, not the TC.

  16. Zeke says:


    OfCourse said:

    PassingThrough… you fit perfectly on CAAFlog (re: #4 of your comment).  The case is reversed on IAC grounds but let’s find a way to blame the TC, because, as we know from reading this blog, everything boils down to that dirty TC who will do anything to get a conviction, including ensuring the accused had a bad defense counsel.

    The prosecutor is not directly responsible for an ineffective defense counsel, that is true.  But, when the defense counsel is appointed by the government, their ineffectiveness is the government’s fault.  A lay accused does not have the competence or the duty to ensure that the counsel the government has saddled him with is effective.  If (and I emphasize “if”), in this trial, it became apparent to the prosecutor that their client, the “big G” government, had failed to afford the accused the right to effective assistance of counsel he was entitled to, then I think the prosecutor had a duty to intervene lest he become personally complicit in his client’s malfeasance.  If the error were that obvious at trial, then standing by silently at that point would have been problematic, I think, for multiple reasons.  First, as a prosecutor, the goal is always justice.  There is no justice to be found in a process that deprives the accused of fundamental rights.  A prosecutor, I think, has a duty to put a stop to such an unjust proceeding.  Second, as a military officer, the commissioning oath to support and defend the constitution, would compel a prosecutor to action once it was clear that the constitution’s guarantees were not be afforded to the accused.  Finally, I think trial counsel’s duty as an officer of the court also required intervention if the denial of effective assistance of counsel was such that the truth finding function of the trial had been threatened.  If the failure reached that level, though, every lawyer which had made an appearance in that proceeding, including but not limited to the prosecutor, had a duty to intervene to avoid a fraud upon the court.  Ultimately, though, I don’t know whether the failures in this case would have necessarily been visible to a prosecutor.  But, to the extent they were, the prosecutor certainly had a duty to intervene.

  17. Tami a/k/a Princess Leia says:

    If I’m the trial counsel, and I see the new SDC sitting in the gallery, watching the trial and the MJ is telling the DC to consult with the SDC, I am thinking the SDC is already aware of the deficiencies, so there’s nothing for me to say.  Interesting that the DCs submitted an IMC request n behalf of the accused, which not surprisingly, got shot down.  If only that request had been approved….

  18. PassingThrough says:

    Just came here to follow up – but I think RY, Dew_Process, and Zeke have covered my point sufficiently.
    To be clear – I’m not absolving TDC of their responsibility – see points 2 and 3.  And I meant to (but forgot – not unlike LT S) include the military judge’s responsibility as point #4.
    I’m not saying that the TC should use IAC as a barb in open court – I’m saying the TC needs to raise the issue privately with his/her chain of command and say, “Look, even if we get a conviction, we could lose this thing on IAC grounds.”  A CO-to-CO phone call needs to take place to say, “Get your guy some help here, b/c this is bad for everyone involved, especially the client.  If your subordinate attorney needs a continuance, an IMC, whatever, he should ask for it.”
    Decisions like this make MILJUS look bad to our sister services, to our clients, and erode public confidence in our system.

  19. Abe Froman says:

    From all accounts, the DCs were busting their butts off on the pretrial preps and, at least, looked busy to their supervisors.  I can imagine the scenario where the supervisors performed their requisite drive-bys, saw the flurry of activity and equated that with smart preparedness, so they never did a deep dive on the case.  Couple this veneer with the SDC out on leave, a reservist filling in as the acting SDC, and junior counsel not wanting to look weak in front of their bosses.  Although not excusable, it is understandable how something like this could happen.
    The MJ is one of the NMC’s most experienced trial judges.  I bet he contemplated stepping in at some point.  After the opening statement, I even think the MJ knew that the train was coming off the tracks.
    As we are busy wringing our hands, rewind 10 years ago and the makeup of the defense team wouldn’t have shocked too many people; in fact, it happened all the time.  And, it’s not like the SDCs and STCs 10 years ago were 05s (or even 04s, in some places).   
    But, all that will change.  Based on Hinojos and now Edmonds (both from NDW), I expect supervisory attorneys to be in their counsel’s business much earlier and in much greater detail.    

  20. K fischer says:

    Oh yeah.   I forgot that LT S submitted an IMC request.  Perhaps that IMC request should have been granted.  It would have been interesting to see how the MJ ruled on that one had LT S argued the motion.   And notice the new CO  took over the day after the court martial commenced.  I wonder if the outgoing CO knew about the IMC request and withdrawal of the motion.
    Why do two LTs with a track record for plea bargaining get assigned a Naval Academy rape case?  So, the  Academy can look like it’s tough on sexual assault for Gillibrand and McCaskill?

  21. Phil Cave says:

    But, all that will change.  Based on Hinojos and now Edmonds (both from NDW), I expect supervisory attorneys to be in their counsel’s business much earlier and in much greater detail.    

    Check back in a year or so.  
    Sad the lesson is constantly relearned on the backs of some DC who were stuck.
    Sad for an accused, who might actually be innocent to have to sit and watch this, and read about this, and potentially go through this again.
    Sad for alleged victim’s, who might actually be victims and have to go through this again.  I know it’s counter-intuitive, and I’ve been having this discussion with a number of people in regard to certain blatherings about DoD hiding data about victims–Kyle, this is a collateral effect of Gillibrand’s work, as well as of others.  Is it not a collateral effect that the experienced are taken for prosecution and SVC, so the experienced are not available to fill a DC billet, or be an IMC?  This does harm to victims.  

  22. stewie says:

    Cases are a lot more complicated than they were 10 years ago, particularly in sexual assault cases, so expecting brand new defense counsel to know what they are doing in their first cases is supervisory malpractice.  They never should have put two wholly inexperienced counsel together on this case to begin with.
    I gotta be honest, the idea that the TC is supposed to intervene when the judge hasn’t, and the SDC is sitting in the court-room is, with all due respect, ridiculous. The “Big G” put senior leaders in the SDC and RDC position, and put a senior leader in the MJ’s chair.  Those are the people who are responsible.  Not the O-3 TC. It’s absolutely silly to lay this at their feet. To assert that with their limited experience they should step in when much senior folks on both sides of the aisle appear to think everything is fine, or fine enough to continue.

  23. k fischer says:

    I agree.  The TC is very low on the blame line, if at all.  LT S requested, and I’m assuming his client also wanted, a Naval Academy instructor as an IMC, but the request was denied by the IMC’d attorney’s boss, who I’m assuming would be the Supe.  Also, I’m assuming that the TC, the COJ, and the SJA all knew about this IMC request, yet, some if all recommended that it be denied. 
    While it was not an Academy Billet, I taught OCS, IBOLC, and ICCC military justice at the Infantry School, Laws of War at the Conus Replacement Center, was a magistrate (24 hearings in two years), and was a JARO recruiter for South Florida law schools, and I would have had PLENTY of time to spare to defend someone accused of rape.  While I recognize that my experience at the Infantry School might be different than that of the IMC’d Navy attorney with regards to his or her time constraints, the optics on the decision is really, really bad if the Naval Academy Instructor’s schedule was as flexible as mine was.  If so, then I lay the blame on the IMC’d attorney’s boss who is the Supe, then the SJA if s/he recommended denial.  But, it would still be the Government.
    I still wouldn’t law any blame on the TC.  If I’m the TC on the case, who would I rather face on the opposite side of the aisle?  The Naval Academy Instructor for Military Law or LT S?  Can’t say I blame the TC for not speaking up, particularly if my SJA is recommending that the Sup deny the request.  Plus, I am not familiar with any rule other than the rule compelling a report and the rule regarding competency with regards to the TC’s duty to do something, i.e. if the TC thought LT S was incompetent, then he had a duty to report.  LT S did try to say that he was not competent and bring in a more experienced counsel, but the request was denied and he withdrew the motion, after he filed it.  At that point, I would imagine the TC thought LT S gained the requisite competency to defend Edmonds, or changed his mind and thought he was competent all along.  Once the trial started and this alleged incompetence was discovered, then we had two more experienced, senior ranking people in the room (MJ and SDC) who could have stopped the train wreck, so I don’t see why anyone would think the TC had to report. 

  24. Zachary D Spilman says:

    I gotta be honest, the idea that the TC is supposed to intervene when the judge hasn’t, and the SDC is sitting in the court-room is, with all due respect, ridiculous.

    I agree with stewie.

    I think that PassingThrough’s point #4 (“Isn’t there an obligation for Trial Counsel to raise the issue with his/her chain of command?  Seems like there should’ve been a CO-to-CO phone call here.”) was a comment on the fact that the case was initially submitted to the CCA on the merits. As the CCA noted:

    The appellant’s record of trial was originally docketed on 20 April 2012 and his initial appellate defense counsel submitted the case on its merits, i.e., without assignment of error, on 7 August 2012. While reviewing the record and allied documents, we discovered that the clemency matters submitted by the appellant’s trial defense counsel averred that the appellant did not receive effective assistance of counsel at trial. Moreover, the trial defense counsel against whom this claim was levied was the same counsel who forwarded the appellant’s concerns to the CA and represented the appellant in his post-trial matters. 

    Slip op. at 3. The IAC issue followed. 

  25. JTS says:

    k fischer,
    Just FYI, the IMC request was for an instructor at the Naval Justice School who happened to be a Naval Academy Grad.  That still doesn’t change any of your analysis, and if anything, it makes the denial even worse.

  26. Phil Cave says:

    Actually the IMC problem was created a long time ago when they changed the rules, I think in the mid-1980’s.  Current Navy practice is reflected here, in para. 0131.

    All counsel serving on active duty in the Navy or Marine Corps, certified in accordance with Article 27(b), UCMJ, and not excluded by subsections b(4)(a) through (e), below, may be determined to be “reasonably available” by the commander of the requested counsel.
    (b) Counsel who are performing duties as trial counsel; trial or appellate military judge; appellate defense or government counsel, court commissioner; principal legal advisor to a command, organization or agency having GCMCA, or the principal assistant to such legal advisor; instructor or student at a college, university, service school, or academy; or assigned as a CO, executive officer, or OIC; 

    If you are considering NJS a Service school, not sure it does or should, that’s an exclusion.

    (d) Navy or Marine Corps counsel who are: (1) permanently assigned to a command or organization outside the Trial Judicial Circuit where the proceeding is to be held, unless the requested counsel is permanently assigned within 500 miles of the situs of the proceedings, determined in accordance with the official Table of Distances; or

    (NJS is at Newport, Rhode Island, and I believe in the same judicial circuit.)

    Administrative review. The decision whether requested counsel will be made available to act as individual military counsel is an administrative determination within the sole discretion of the commander, except as specifically provided below. If the commander declines to make requested counsel available, the accused may appeal that decision via the commander to the commander’s immediate superior in command, but appeals may not be made which require action at the departmental or higher level. The accused may appeal the determination on the basis of an abuse of discretion, lack of authority to take action on the request, or action by a commander based on inaccurate or incomplete information. The reviewing authority shall consider those allegations and, if warranted, direct corrective action. The appeal shall be promptly reviewed, and the commander of requested counsel, the convening authority, and the accused shall be promptly informed of the decision. 

    Like any administrative decision, a military judge would be reviewing a denial to determine if there has been an abuse of discretion.

    With respect to the denial of the IMC request for Captain [A], “this determination is a matter within the sole discretion of [his commander].”  RULE FOR COURTS-MARTIAL 506((b)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (1998 ed.). We, therefore, examine the commander’s determination for abuse of discretion. United States v. Anderson, 36 M.J. 963, 973 (A.F.C.M.R. 1993); United States v. Redding, 11 M.J. 100, 113 (C.M.A. 1981)(Everett, C.J., concurring).

    United States v. Allred, 50 M.J. 795, 799 (N-M.C.C.A. 1999)

  27. Eckert says:

    While the leadership who detailed both defense counsel on this case bears some of the responsibility for what happened, I wonder if things would have proceeded differently had the DC moved the MJ to overrule the denial of their request for a IMC.  And, once trial kicked off, it seems the MJ would may have even reconsidered his earlier ruling on the IMC issue given the way things went.  
    From page 8 of the opinion: “the defense team filed and then withdrew a motion for review of the denial and did not pursue the issue any further. Additionally, the trial defense team did not make the military judge aware of their concerns that they lacked the litigation experience to effectively represent the appellant and were in over their heads.”
    As far as the TC, I am not sure what they are supposed to do when the SDC and the MJ were not only in the room but also attuned to the IAC issue.  Finally, some credit should actually go to the DC who admitted at the DuBay that they were ineffective.  From the opinion at least, it seems NMCCA got this one right.  It will be interesting to see what 46 does, the AF would probably certify it.

  28. Advocaat says:

    Isn’t the larger issue the manner in which the Navy fills its defense billets?  How can you (TJAG) put counsel in defense billets out of the gate without prior litigation experience?  The AF vets first and second assignment TC/O-3s before recommending their approval as ADCs, and I believe the Army does the same before a TDS assignment.  If I’m wrong about the Navy putting brand-new JAGs straight into defense billets before they have prosecuted any cases, please correct me.

  29. stewie says:

    The Army, on occasion, does put counsel with no crim law experience into defense billets, and I’m sure other services do the same from time to time.
    There is a belief that too much, or even any, TDS time harms one’s chance for promotion.  Rather that is true or not, it is certainly the perception.  Others just have no interest in doing it, and I don’t get the sense that folks are pushed into it very often.  So you quickly shrink the pool of folks.  Then you have competing crim law assignments, TC, SVP, STC, COJ, SVC that drain quality folks from potential defense duties.
    So you end up with some folks either brand new, or with no crim law time.

  30. stewie says:

    Whether, not rather.

  31. The Silver Fox says:

    I remember being at a TDY where a brand new Navy O-3 was telling us he was going to get sex assault charges dropped by putting his client on the stand during the Article 32.  Once I found out the Navy put newly-minted O-3s into DC billets, I understood how he could have arrived at such a horrible strategy.  If the Navy continues to put baby JAGs into DC billets with no vetting or experience, that seems like a system designed for failure.  Therefore, Air Force wins again. 

  32. DCGoneGalt says:

    The Navy will put a brand spanking new law school grad in a defense billet?  Without even so much as extensive criminal experience in the civilian sector prior to commissioning?  Wow.  I was often surprised that clients would not ask me how much experience I had when i was a defense counsel because I can tell you that if I walked into a military defense office and sat across from a 28-34 year old Capt with a service jacket hanging on the wall with 3-6 ribbons on it, my first thoughts would be “How many times have you been in court?  On what cases?  And what was the result?”  If I wasn’t satisfied, I would be ponying up a retainer soon thereafter.

  33. Terri Zimmermann says:

    TSF: I agree. For those that don’t get the USAF reference, the Air Force only lets lawyers represent a live human being after serving for at least two years as a trial counsel, getting comfortable on their feet in court and becoming more familiar with trial practice representing the Government. Great idea that the Navy and Marine Corps should adopt. Yesterday.

  34. Monday morning QB says:

    The Marine Corps doesn’t give away ribbons like candy like the other branches do.  Under your ribbon analysis, I was too inexperienced to represent you at age 42 with 6 ribbons and having been a TC/STC, AGC, MJO/STC and military judge after 4 tours.

  35. The Silver Fox says:

    The Air Force wins at defending servicemembers and at gratuitous ribbon distribution.

  36. Gabriel Bradley says:

    The Navy does not put brand-new attorneys into defense billets anymore. New judge advocates must now complete two years of closely supervised on-the-job training before they are eligible for assignment to a litigation billet. Moreover, the Navy now has a military justice specialization program. So the STCs and SDCs who supervise new litigators have more training and experience in criminal law than under the old system.

  37. Darth Desolous says:

    “As far as the TC, I am not sure what they are supposed to do when the SDC and the MJ were not only in the room but also attuned to the IAC issue.”Not sure if you have any TC experience (or any prosecutorial experience) – but the fact that others in the room were attuned to the issue has nothing to do with the TC’s responsibility! 

  38. DCGoneGalt says:

    MM QB:  Even if you looked and talked 42 y.o., I would have asked the questions.  If my future is on the line, I don’t want some young eager beaver cutting his teeth on my log.

  39. Lieber says:

    If I were being court-martialed I’d hire civilian counsel not necessarily for expertise so much as simply to have investigators and the possibility of collateral attack etc.

  40. k fischer says:

    So….do…….that’s what……I think ………..phrasing….

  41. John O'Connor says:

    If the TC goes to the DC’s boss in mid-trial and complains about the way the DC is trying the case, with the suggestion that the DC’s boss should step in, the defense bar would raise holy hell that the government is trying to intimidate defense counsel.  Didn’t this happen once when the TC shop gave a “courtesy call” to the MJ’s boss that they were going to seek the MJ’s recusal?
    When I was the Senior Trial Counsel in my office (a loooong time ago), I was all of two years out of law school but understood that it was my responsibility to sit in on new trial counsel’s first few cases and get them to break for advice if they were screwing up.  I don’t know how the DCs were allowed to have such a serious case as their first real trial experience without someone babysitting them.

  42. Burt Macklin says:

    ITT:  “I would always advise hiring a civilian defense counsel” – Civilian defense counsels

  43. anon81 says:

    For the concern regarding inexperienced DC, that problem has been alleviated in some respects in the Navy with their new “first tour judge advocate” program – first tours are required to spend 6 months in each area of practice (trial, defense, command services, and legal assistance), and during this first two year period, they are not allowed to be detailed to courts-martial, on either the trial or defense side. They can only do persreps and adseps/BOIs on the defense side. After that, they may be detailed to defense billets, but most end up at TC/SJA billets for their second tour.

  44. Eckert says:

    @Darth Desolous – what do propose they do? Stand up at 39(a) and say “I think DC is being ineffective.” Request that the defense resubmit the motion asking that a qualified IMC get detailed?  My level of experience is irrelevant.  I would agree that on matters of due process/Brady the MJ/SDC being aware of the issue lacks relevance to the TC’s duties.  That aside, the Govt cannot interfere with the detailing of a counsel and the detailing of additional counsel to a represented party.  If the TC goes into the SDC/RDC’s office during the pendency of a case that the TC is detailed to and says the DC is being ineffective and you need replace him/her, readers of this blog would be appalled.  In any event, both people with the authority and ability to rectify the situation, the SDC and the MJ realized there was an issue.  And yet, people here are analyzing this from the perspective of “it got reversed so it is on the TC.”  Oftentimes that’s correct, but on this case, I respectfully disagree.   

  45. Darth Desolous says:

    @Eckert.  No one is arguing that the TC has primary responsibility; people are simply stating that the TC has a responsibility.  I do think one’s level of experience is relevant.  If you haven’t prosecuted a case yet, you’ll find out soon enough!  Having a case reversed because you didn’t do your job (and may have relied on others to do your job) is a terrible experience.  As a prosecutor, you do not represent the victim, the command, or the service.  You represent the United States government.  Unique responsibilities come along with that. 

  46. stewie says:

    Unique yes, but not infinite. A TC has zero responsibility in this case: where the MJ is clearly aware, and the SDC is in the court-room.

  47. RKincaid3 (RK3PO) says:

    Hmmm….now why would it ever be in the government (and thus the TCs) best interests to intervene and do exactly what Silver Fox recommended?
    Let’s see–maybe to try to defuse the landmine that is about to blow up in the Defense’s face on appeal, which in turn results in collateral damage to–WHO??     Umm, oh yah, the government, who now, after an appeal and all the costs of the initial trial and the subsequent appeal and after the loss of witnesses to death and combat and separation, etc., maybe years later, having to undo what defense did.
    The government could and arguably should have intervened to save itself from the consequences of readily visible IAC.  But why?  Isn’t the government’s goal a conviction?  Yes, but not at all costs (I know, Congress and others apparently don’t yet get that despite YEARS of Anglo-American jurisprudence to guide us and them).   The justice process requires more than a conviction.  And what good is a conviction that is overturned years later–especially when that land mine in the judicial record can be disarmed by a timely objection IN THE INTERESTS OF JUSTICE, which is the PROCESS, not the result.
    Yep…the TC should have done exactly what Silver Fox said: 

    “Your Honor, defense counsel is being ineffective. I’d like an Art. 39(a).”

    THAT would be the most appropriate thing to do, legally, and professionally.   It might at least make an appeal harder for the defense if they get a chance to fix what is happening to them.
    It is not personal, just professional, and objectively just.

  48. stewie says:

    So, you want one inexperienced counsel to know the proper point at which to, on the record, accuse another inexperienced counsel of being ineffective?
    This has nothing to do with doing justice, it’s about expecting ridiculously unreasonable actions from young TC.  If this were somehow a rule, nearly every trial would have these motions from TC. It’s mind-boggling to me quite frankly. I’m a pretty defense-minded fellow, but come on.

  49. anotherlawyer says:

    Shouldn’t the assistant trial defense counsel have an obligation to file that motion?

  50. A Random JAG says:

    I’m pretty defense friendly, and even a defense counsel now, but anyone placing any sort of the blame on the TC (however small, especially in relation to the other players) are crazy.  At best, the TC should’ve talked the situation over with his/her COC to see what they should do.  For all we know, that may have already happened.
    But to have a supervisory trial counsel call over to a supervisory defense counsel to comment on tactical and strategic issues with the trial defense counsel is just a bridge too far.  Yes, trial counsel should protect the record, but going to those lengths would be absurd.  Calling it out on the record is even worse.  It’s not, and it shouldn’t be, trial counsel’s responsibility to make sure the accused gets effective representation.  If there’s a problem, it will be handled appropriately on appeal.

  51. The Silver Fox says:

    For the record, my Article 39(a) comment, like many others I’ve posted here, was a joke.  But I do love the idea that you think the defense community would commend such an objection, C3PO.  I also have a bridge to sell you.

  52. Charlie Gittins says:

    Dinosaur checking in.  My first assignment was as a DC in Okinawa out of law school in 1987.  Yeah, it is a lot of responsibility to represent a Marine facing criminal charges.  So, you study, prepare and ask for help.  If the DC system is still working, you get some mentoring.  The day I checked in I was handed 11 case files.  I was hectored by the LSSS OIC because I demanded time to prepare my cases, but I was supported by my DC chain of command.  (I was a senior Captain, FLEP, so I was not scared to speak up).  I had a supportive SDC and RDC, who frequently visited me to see how I was doing.  We also had regular Friday night beer consultations.  My first contested trial was 2 months after I reported and was a GCM against a Major TC with lots of experience.  My client was acquitted and all the BS about me not being willing to go to trial went away.  My point is that you cannot expect a fetus DC to provide adequate defense without leadership, support and mentorship.  If they are not getting it, it is not their fault.  It is malpractice on the part of the TJAG for not ensuring that it happens.  With great authority comes great responsibility and we would be well advised to hold the most senior responsible when they place inexperienced counsel in situations they are not properly prepared to address.

  53. charlie gittins says:

    Oh, by the way . . .  TC has no responsibility for this fiasco.  It is all on the MJ.  The “smartest guy in the room” should be able to recognize a train wreck in progress and take affirmative action to prevent it.  MJ fail in  this case.

  54. RKincaid3 (RK3PO) says:

    Silver Fox:  I know you were joking.  But, I was NOT.  This isn’t about the TC trying to embarrass opposing counsel.   It is about the TC trying to protect the integrity of the prosecution.  Remember that the TC is supposed to be after justice.  Barring that, perhaps the judge should stop the trial, convene an Article 39A and let the parties know that the trial is not going pursuant to law and take whatever remedial actions are necessary.
    You guys should know me by now–I am a defense hack at heart.  But I am even more of a system advocate and hate it when the system is falling apart and everyone is just fine because, c’est la vis, that is just the way it is–from the debacle that is Congress’ screwing up the UCMJ to UCI running rampant throughout the political-military machinery to now this.  Everyone on this site is apparently convinced that it was not the TCs job to dime out the Defense.  Additionally, because of the relative silence on this issue, everyone is also apparently convinced that the Military Judge had little to no obligation other than to watch passively the speeding train wreck that was the defense.  So, apparently the only failure here was the Defense–who is apparently so inexperienced that they don’t know what they are doing and apparently are not to be told by anyone else in court how bad they are doing—but “hey,” there was absolutely no systemic failure, right?  (Given the appellate court reversal, I suspect someone somewhere believes there was a problem and wasn’t afraid to dime out the responsible parties).
    Sorry, I am not buying that the experts on this site are really forming a consensus in agreeing that the accused was denied his fundamental constitutional rights (something that Congress, I am sure, absolutely loves and wants to see more of) and all we can say is “so what? Bad defense attorneys!!”  “Oh well, it is not my responsibility to make sure the system of which I am a part is fair and just and efficient, because, well, I don’t want to embarrass someone or hurt their feelings.”  Really?
    Aren’t we supposed to be serving the public by ensuring fair trials–even if achieving that fair trial hurts someone’s feelings and is perceived as uncaring and mean-spirited?  Or is this case (and what Congress has put forth via Art 120 and its other mutilations of what little “justice” was left in the UCMJ) the accepted “dog and pony show” style of UCMJ proceedings now and in the future?
    Have we all just resigned ourselves to a collective “oh, well?”

  55. Darth Desolous says:

    @RKincaid.  Absolutely great points.  The TC easily could have called for a 39(a) session.  If it were called without merit, that’s an issue for the Military Judge.  That did not seem to be the case here. 

  56. Abe Froman says:

    I think many on this board have suggested that this was more in the MJ’s lane than it was in the TCs’.   But, from what I have gathered, the TCs in this case also spiked the ball on numerous occassions when the DCs screwed up.  While they don’t have an obligation to stop DC’s self-imposed wounds, what about the myopic view of pouring salt on them in front of members?  I don’t know how I would have handled that as a TC….

  57. Phil Cave says:

    1.  What Charlie said.
    2.  I am not aware of any law or ethical rule that requires the prosecutor to stop what has been described as a train-wreck.  Nor am I aware of some moral obligation to step in.  
    3.  I do not believe the MJ had much discretion here either.  This would be a good law review or AL article, “What role does the MJ have and what actions may she take, in the face of an obviously incompetent defense, to ensure a fair trial?”
    4.  Leadership and mentoring are the best remedies.  (For those I’ve talked to about this off the record, my longer comments are still in moderation–does that work?)
    5.  Another potential article, “At what stage, if any, may an STC take out the cane, snag the leg of the DC, drag the DC off stage, enter an appearance, and immediately ask for a mistrial and continuance?”

  58. DCGoneGalt` says:

    Silver Fox:  Any info/pics on that bridge you are looking to sell?  I am interested.

  59. AnonymousJA says:

    Do defense attorneys have a privacy right regarding their negligent representation? While I’m not looking for a name to be published directly on this site, I’m having a hard time figuring out the opinion’s use of “LT S” unless there is a regulation that I am not aware of? 

  60. stewie says:

    No, the TC could not have “easily” called for a 39(a) session, and no, the idea that if it’s without merit, it’s simply “an issue for the military judge” is equally untrue.
    Point me to an ethical rule. Point me to a regulation. Point me to anything that stands for what you all are proposing.
    And don’t cite “justice.” We do this regularly: that is, establish ethical lines and rules for things. So if this is so obvious, if this is so clear, then show me the ruling.  Just one.  Heck, show me the journal/law review article proposing anything close to the idea of the ethical obligation of the prosecutor to raise the effectiveness of the DC at trial.

  61. SeaLawyer says:

    Yeah, the responsibility doesn’t lie with the TC/SJA, it lies with three groups of people: 1. The DC. 2. The DC’s supervisory chain. These are the main culprits IMO.  You cannot put this junior of folks with no supervision/guidance.  How do you not pair at least one of the junior officers with a more experienced one?? 3. To a minor extent, the MJ. I think at some point, the MJ maybe needs to call the RDC and explain just how badly things are going and that maybe there’s an issue here.  Although, I’m not sure if mid-trial is the right time to do this. I hope it happened after trial for sure.  Mostly this is a TDS leadership failure…these counsel were set-up for failure (as was this client).

    Agree 1000%, Stewie.  I was the USNA DSJA at the time.  And I’m good friends with LT S.  I’ve had many conversations with him about this case, and while I don’t absolve him of responsibility, I think the primary responsibility lies with his chain of command.  Having twice been an SDC and also a NLSO XO, never in a million years would I detail two brand new JAGs who’d tried ZERO contested cases between them to a high-profile GCM (remember, this is the Academy, so even without the hyper-focus on SA fleet-wide, it’s still high profile).  The many times I was in this position as a supervisory DC, I would detail myself as 1st chair, and the new counsel as 2nd chair.  Occasionally, with a particularly bright/promising young DC, I detailed myself as 2nd chair and he or she as 1st chair.  Detailing two counsel with zero contested trials between them to a case like this just sets them up for failure.  And if for some BIZARRE reason, it was unavoidable (not the case here), then the leadership should have been murder boarding them thoroughly and repeatedly throughout the process.  That never happened either.  Representing the command, there was little I could do, though I did provide LT S with advice on several things which I justified from a “protecting the record” standpoint. 
    To further clarify the IMC question, LT S submitted a request for an NJS instructor.  While the Supe could have denied the request outright without forwarding it, since JAGMAN 0131 says the requested JAG was not reasonable available, he chose to forward it to the NJS CO, in the event the NJS CO might choose to make that person available.  The NJS CO declined to do so.  I urged LT S to submit a request for someone else.  He never did (his biggest failing, in my opinion). 
    Obviously I didn’t sit in on the trial, but LT S briefed me afterwards.  Frankly, it took a lot of courage for him to fall on his sword as he did, and I respect him greatly for doing so.  While he doesn’t fault his command at all and accepts full responsibility for his failings, I’m not so generous, for reasons stated above.  He did get much better after this.  He had a number of cases during the balance of his time at the NLSO and did quite well.  He also had new leadership.  I had a board against him the week before he PCS’ed, in which he did an excellent job, proving that the capacity for him to perform at a high level was there from the beginning — he just needed some guidance and experience.

  62. RKincaid3 (RK3PO) says:

    Citation to precedent is useful in maintaining the status quo—Stare Decisis is indeed an invaluable part of the common law.  But it can also be a crutch–a sign of a vacant mind devoid of original thought looking desperately for support of an unoriginal idea further supporting a status quo whose time to evolve has long passed.
    The common law evolves–often by fits and starts–sometimes violently with revolutionary ideas that lack any precedent and whose only redeeming virtue is that the idea is new and its time has come.  Consider then compare the Dred Scott case and Plessy v Ferfuson with Brown v. Board.  The former cases were consistent with precedent regarding the humanity of blacks and the latter case threw precedent out the window for no better reason that the time had come to do so and it was right to do so.
    So, in that vein, why couldn’t/shouldn’t a TC to move for a 39A, vaguely, and for the MJ to respond with, vaguely:

    “Members of the panel.  We are now going to adjourn for a 39A session.

    Then after the panel has departed, the observations about the train wreck can be calmly discussed on the record and the MJ can try to avert not only an injustice (a conviction brought about by a failed defense, not as a result of due process and BRD certainty) but also to preserve whatever reputation and integrity the system has left after Congress’s absurd Art 120 tinkering.
    The MJ should be considering whether the trial is a travesty unfolding in violation of not only the 6th Amendment, but also in violation of the “fair trial” rights to either the government or the accused (both of which are entitled to a fair trial) as articulated in RCM 102, which provides:

    “Construction. These rules shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.”

    Remember, too, that the discussion section of RCM 801 provides in relevant part that:

    “The military judge is responsible for ensuring that court-martial proceedings are conducted in a fair and orderly manner, without unnecessary delay or waste of time or resources.”

    Indeed, a TC would indeed have the authority to so move the MJ pursuant to RCM 802, which provides that:

    “After referral, the military judge may, upon request of any party or sua sponte, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial.”

    A fair trial is denied to both the accused and government when either side behaves in a way that deprives the other of a verdict that is supported BRD by the evidence and the law, especially when any verdict is instead supported primarily by the failure of either side to perform under the rules and law. 
    Indeed, why could the MJ, upon finding a fundamentaly unfair trial is underway–for whatever reason, but especially for a 6th amendment violation–not declare a mistrial under RCM 915 which specifically provides that:

    “The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the entire proceedings or as to only the proceedings after findings.”

    Such a move, and an on-the-record discussion with the parties outside the presence of the panel—WITH THEIR RESPECTIVE SUPERIORS PRESENT—would allow the parties to learn from their mistakes, attempt to correct them an additional delay; it would allow the derelict party’s superiors to learn of their failures to supervise; it would allow the trial to re-set (to include replacing the Defense and or their supervisors or any other derelict party); it would preserve the parties’ joint interests in a fair trial; it would ensure full due process; it would save the needless, preventable waste of finite judicial resources; and it would preserve the status quo until such time as the parties were prepared to conduct a fair trial.  Indeed, do I need to count the number of times the word “fair” is referenced in the MCM and is there any doubt that its multitude of uses is in fact a lawful command?
    So, mock me if you will (it won’t be the first time, right?), and mock this idea, but instead of asking me for authority behind this option, why don’t any of you show me where it is FORBIDDEN, ethically, legally or morally for all parties to cooperate in ensuring that a legal, fundamentally fair trial is in fact conducted pursuant to not only the rules and law, but also consistent with our traditional notions of Anglo-American justice.  All you have argued is why it should NOT be done but have offered little of your much vaunted precedent in support of your perspectives.
    So, kindly show me the authority which holds that the respective rights of all parties (which does NOT include victims as they are witnesses, not parties) need NOT be both protected and vindicated through the presentation of the verdict, whatever that verdict may be, simply because to do otherwise is to embarrass someone or is uncomfortable to do.
    Leadership is painful.  And as lawyers and as Officers, we are supposed to LEAD, not simply glom onto precedent, shake our heads, and shout “c’est la vis at least it is not me” who is the accused.
    Again, this is just my opinion–worth no more and no less than anyone else’s.

  63. Phil Cave says:

    From my “worth the read” list.
    You are aware that the PR rules are based on the ABA Model PR

  64. stewie says:

    Lotta words to say I don’t care about precedent. But this isn’t about “precedent.” Defense counsel have been ineffective more than a few times during the years, including during trials (in fact, kinda usually when they are ineffective).  Yet in all that time, no one has suggested that the prosecutor or TC is somehow responsible for raising the issue to the judge, particularly when the judge has every ability/power to raise it sua sponte.
    There’s probably a reason for that, and I doubt it’s a lack of “leadership.”

  65. RKincaid3 (RK3PO) says:

    Thanks, Phil Cave.  Great reference.  Been quite some time since I perused it.  And yes, I am aware that the PR rules are based upon the ABA model PR.  Again, still not seeing anything that nullifies my point that there were a lot of people with a lot of responsiblity– professional, personal or aspirational–especially in light of the oft referenced legal requirements in the MCM that the proceedings be fair to all parties.
    Stewie:  Sorry, nice distraction.  I never said I didn’t like precedent.  I said that reliance upon it to avoid making a touch call–a change–can become a problem if used improperly (such as like a crutch)–as any tool or rule can. 
    Really, we aren’t simply rusty cogs in a big, nameless machine that grinds up people and occasionally stops only when someone else takes the responsibility for the process.  All I am saying is that there are more folks here with responsibility (legally, ethical, aspirational, etc.) for a fair trial than the appellate courts.  Indeed, is it really a valid position to argue that no one but the appeallate courts in this process have any “…responsibilities whatsoever.”
    I KNOW that we are better lawyers, officers and people than that.

  66. stewie says:

    I feel like I’m banging my virtual head against a wall made of virtual, and quite angry, cats.
    No one said “only the appellate courts” have responsibility. We’ve listed the DC, the defense leadership, and the MJ.  We’ve even said insomuch as an SJA disapproved the IMC request, they may have some culpability here.
    What we are saying is that an O-3 trial counsel is not on that list.

  67. SeaLawyer says:

    We’ve even said insomuch as an SJA disapproved the IMC request, they may have some culpability here.

    The CA had no choice but do deny the IMC request because both the rule and the lawyer’s CO said he was unavailable.  Had LT S submitted a 2nd request for someone not per se unavailable under the rule, the Superintendent would have forwarded it to that person’s CO, recommending approval.  We WANTED him to have an IMC because he was obviously in way over his head, which is why I urged him to submit a 2nd request. 
    Stewie, how do you get the extra line breaks between your paragraphs?  I can’t seem to do it.

  68. SeaLawyer says:

    should have read “to deny”…
    And never mind on the line breaks.  I obviously figured it out.  Enter, twice!!

  69. DCGoneGalt says:

    Well, I may as well take this in the craziest direction imaginable:
    Stewie:  You said, “I feel like I’m banging my virtual head against a wall made of virtual, and quite angry, cats.”  Well, virtual head-butting of virtual angry cats is a CAAFLOG-inspired update of an actual medeival custom.

    “For entertainment, one could nail a cat to a post and try to head-butt it to death . . .”

    Steven Pinker mentioned the practice in his book “The Better Angels Of Our Nature: Why Violence Has Declined”.  Just watch out, Pinker also mentioned how many of the head-butters ended up with their eyes scratched out by the cats.

  70. Babu says:

    This case is from 2011.  Given the renewed focus on military justice, and the focus on proper billet assignments and adequate supervision since then, there is minimal chance something this egregious would happen again.  It is fair to say that leadership has addressed these concerns, and realizes that military justice is not just a first tour “check the box” billet on the way to being an SJA, and it needs to be supervised by officers with a deeper level of experience.  And being “well-rounded” doesn’t really do a whole lot for the patient laying on the table–“Your surgeon isn’t that experienced with the scalpel, but don’t worry, he gives awesome command advice.”    
    SeaLawyer, appreciate your posts.  If the SJA office was concerned about proper representation of the accused, why not speak to the defense leadership about it?  The concern of both the SJA and CA is legitimately on ensuring that a proper proceeding occurs.  I would think that you would have been totally in your lane if, after the first IMC was denied, you called the SDC and said that you were concerned about the accused having proper and experienced representation, and the CA was on board with providing any necessary funding for an IMC or for an additional counsel to be detailed, etc.

  71. SeaLawyer says:

    The SDC was part of the Navy’s Military Justice Litigation Career Track, was certified a “Litigation Specialist”, and was a senior O-4 (at the time).  Not sure about the CO/XO, but it was pre-DSO days, so the CO/XO had more on their plate than just defense. 
    There’s a very simple answer to your question as to why the CA’s SJA office didn’t reach out to the NLSO leadership to express our concern:  Article 37(a), UCMJ.  There are a number of UCI cases that talk about the SJA wearing the “mantle of command” authority.  Expressing concern to LT S’s boss(es) that he wasn’t properly representing his client would be pretty clearly a “censure, reprimand, or admonish[ment]” of the DC “with respect to…his functions in the conduct of the proceedings.”  Even if you think it’s not an outright violation, it would be a huge appearance problem, likely to produce some sort of relief once raised by the defense.  We certainly weren’t going to create a UCI issue for our 3-star boss where none previously existed.

  72. wowzers says:

    Time for a lot of early retirements – first on the list should be the SDC for sitting in the court room and playing pocket pool rather than doing his job. It’s called dereliction of duty. Don’t reply with some nonsense “I know that SDC and he’s awesome” – no, he’s not, he’s clearly not worth a dime at doing his job. 
    Not one comment out the 68 I read, except for Gittins’, even attempts to address the obligations as a commissioned officer. These counsel are officers that graduated from law school and get to represent parties in military judicial proceedings – they are not attorneys playing dress up. 

  73. Lieber says:

    I think it’s idiotic to suggest that the TC could have done anything here that would have been appropriate other than try the case.  (and raise issues up his/her CoC.)  occasionally you see TCs telling DCs that they are doing something not in the best interest of their client.  this is always wrong and usually is a result of the DC knowing something that the TC doesn’t know.

  74. RKincaid3 (RK3PO) says:

    Lieber: What about the judge?  And, the TC doesn’t have to confront the DC on this–especially since the TCs are usually less, not more, experienced than DCs.  Why couldn’t the TC have interjected with their concern as described above when it was obvious that the MJ was not going to act sua sponte?  If the TC is wrong and the DC convinces the MJ that they know what they are doing, the trial goes on and that is that.  If the TC is right and the DC is unable to convince the MJ that they know what they are doing, the the problem gets fixed as described above.
    Or is there another problem here, besides the MJ failing to act sua sponte, and besides the TC not doing anything (because, apparently, he doesn’t have to?  Could it be that the MJ was asleep at the wheel of the speeding, soon-to-be wrecked train, or worse, didn’t even recognize the failue unfolding in front of him?
    Wow, I am so glad to appellate courts–at least they recognize that everyone in this process has a role to play vis a vis each other and that doing the right thing BY AND FOR the SYSTEM serves EVERYBODY (okay, well, most of the time–when they aren’t bending over backwards to sustaing a commander’s decision to impose the conviction they need to convince Congress to promote them).
    Guess I am in fact one of the ODD men out who actually expects the system to work and work fairly without regard to whether someone subjectively likes a particular objectively achieved result.  It is surprising and disappointing that there is not more concern about the fundamental failure here, four years after the fact.
    Well, if I can’t beat ’em, I guess I will join ’em!  So, “c’est la vis!  At least it ain’t me” who was responsible for this debacle. 

  75. Dew_Process says:

    . . . how should a prosecutor react at trial when opposing counsel appears to be advocating ineffectively on behalf of his client?
    . . . the prosecutor who suspects incompetence on the part of his opponent has an institutional interest in protecting the resources of his office and the appellate courts from ineffective assistance of counsel claims later raised on appeal, which will tie up the system and lead to unnecessary litigation.


    Read the article HERE.

    There is no clear legal or ethical duty on the part of a prosecutor to assist defense counsel to perform effectively.

    But . . .

    . . .  it is not surprising that few prosecutors, if any, ever take steps to rectify defense ineffectiveness.270 The Rules are imprecise, and tensions pulling in the opposite direction abound. One reason that scholars have  struggled with this ethical dilemma—and that rulemakers have totally ignored it—is that the only clear answer to the problem may be “it depends.” Whether a prosecutor needs to intervene in the face of incompetent counsel will likely depend upon 1) how flawed the representation is; 2) how serious the consequences to the defendant are (e.g., is defendant facing a felony conviction and jail time, or only a first offense misdemeanor); 3) whether the defendant is represented by appointed or retained counsel;and 4) how perceptible the flawed lawyering may be to the presiding judge. Assuming that the prosecutor decides that some intervention is necessary, he then faces the equally complex issue of how best to address the problem.

    And then there’s this:

    One way to frame the question is: When a prosecutor encounters a defense lawyer who seems to be neglecting a client or grossly mishandling the defense, to a degree that constitutes a violation of the applicable ethical code, what, if anything, does the prosecutor have an ethical obligation to do?

    Read the author’s conclusion HERE.
    But, let’s change the equation a bit – if a TC knows that the DC has a conflict-of-interest, is there a duty to bring that to the MJ’s attention?  Just a thought.

  76. RKincaid3 (RK3PO) says:

    Great sources, Dew_Process.  Thanks for a great contribution to a tough subject!

  77. Zeke says:

    If IAC is indeed a recurring issue, then this is the sort of thing a TJAG should be called to testify before Congress about.  This is the sort of thing our myriad disconnected committees with fancy-pants names like “the Judicial Proceedings Panel” or “the Military Justice Review Group” or “the Joint Service Committee on Military Justice” should be pontificating on.  Ultimately, it is the government who is responsible for the fact that this accused appears to have received ineffective assistance of counsel.  We’re all debating whether it was TJAG’s defense-hat JAGs, TJAG’s prosecution-hat JAGs, TJAG’s commander-advising JAGs, or TJAG’s robe-wearing JAGs that failed this accused.  Maybe it doesn’t matter all that much which type of Minion failed if the person who is truly responsible, and deserves to be held accountable, is Gru.  If you smack a nail square on the head the rest of tends to get in line.

  78. stewie says:

    RK3, so you expect an O3 judge to recognize what the O5/O6 military judge does not? The person you admit is usually less experienced than the DC (much less the MJ)?
    If you want to focus on the MJ, you’d be on much more logical ground.
    The last link from Dew is from someone who clearly is steeped in ethics, and who clearly has more experience on ethical issues than all of us put together.  And that person even struggles/struggled with it.  And the example he cites was not in open court with a judge seeing everything as well. If this case dealt with something that was just between the TC and DC and some tremendous issue of IAC happened, there could be an argument that the TC, at the very least, would need to report that to, well, someone…whether it be the SJA or even the MJ.  But in open court where the MJ sees everything? No.
    When it comes to in-court performance: It’s the DC themselves, the SDC/RDC, and the MJ, not necessarily in that order.  It’s not the TC, who almost never is going to be have more knowledge, wisdom, or experience than the MJ in the military CJ system. The TC saying I think there’s incompetence going on here is not going to move the MJ in that direction if they didn’t already want to go that way.
    To answer the last question, yes, if the TC has knowledge of a COI issue, particularly if no one else knows about it, they need to raise it.
    And yes Zeke because not EVERYTHING is institutional, we do need to figure out who’s responsible and who is best placed to keep something like this from happening again.

  79. stewie says:

    O3 TC, not O3 judge.

  80. Tami (a/k/a Princess Leia) says:

    The opinion states that by the time of trial, the SDC watching from the gallery was new.  I don’t know how “new” to that office, but seems to me that the new SDC would have less culpability than the former SDC who allowed this train wreck to happen in the first place. 
    As far as the DCs falling on their swords, they were supposed to do that. At least they were brutally honest.  Sea Lawyer, thank you very much for sharing your inside knowledge of the situation.

  81. RKincaid3 (RK3PO) says:

    Hooah, Stewie. You will notice that at all times I have argued that many hands were responsible for this fiasco.  I offered the TC as one such person, but I also echoed Charley’s point that the MJ certainly had a role in addition to the DCs superiors.  My entire point in this thread was that the failure here was the responsibility of a lot of people who should have done something besides wait for the appellate courts to do something.
    Again, just my opinion.

  82. Dew_Process says:

    @ Stewie – my interest in this issue is a tad more than academic or theoretical, hence my question on the COI:

    To answer the last question, yes, if the TC has knowledge of a COI issue, particularly if no one else knows about it, they need to raise it.

    But, what about the scenario when you know that the DC is simply not prepared?  That happened to me as a TC and I knew because the DC had not interviewed the victim [physical assault case] and 2 eye-witnesses who were surprised that no one from the defense had interviewed them.  I raised the issue in an 802 just before we were to commence and suggested that an ex parte 39(a) session with the defense would not violate attorney “work Product” if there was one, nor tip their hand as to a defense, which the MJ agreed to.  Ten minutes later, the court recessed for 2 weeks.  Seems the Accused wasn’t enthused by the DC’s approach and personally objected, so the MJ continued the case.
    So the “it depends” response would seem to be that how (or if) one reacts as a TC when looking at the proverbial train-wreck about to happen, is literally going to preclude a general, one-size fits all, rule.  I could have done nothing, but after talking to the SJA, he concurred that he didn’t want to risk re-trying the case.

  83. Zeke says:

    stewie said:

    And yes Zeke because not EVERYTHING is institutional, we do need to figure out who’s responsible and who is best placed to keep something like this from happening again.

    Seems to me that assigning two lawyers with no litigation experience to billets that require, first and foremost, litigation, is an institutional problem.  Seems to me that it is an institutional failure for a system to deny an accused’s request for more experienced counsel once he has been saddled with those two litigation-less lawyers.   Seems to me that there is an institutional failure involved with having criminal proceedings presided over by a military judge who is apparently not capable of ensuring a fair trial even when the defense counsel’s ineffectiveness is unfolding before their very eyes, and is so obvious that an appellate court could perceive it much later and from reviewing a mere written record.  Then, on this board there have been adamant assertions that a TC, supposedly charged with doing justice first, has no obligation whatsoever, under any hypothetical, to intervene when an accused is receiving obviously ineffective counsel right before their eyes.  That such a view shunning any governmental responsibility for the provision of justice in a courtroom should be so widely adopted among folks presumably so experienced in the practice of military law suggests an institutional failure so profound that it has become a cultural failure.  If those things don’t warrant a little scrutiny being directed towards the institution itself, I can’t imagine what would.

  84. Neutron73 says:

    Good grief.  What a mess. It appears this was a ship headed for the rocks and no one wanted to take the wheel to avoid it.
    The DC’s ineptitude is no one’s fault but his own, but the accountability should go up the chain, too. SDC, hang your head in shame, as well as your bosses for failing to intervene if things were going off the rails. The MJ? You too.  MJ should take a nice slap for failing to head off this train wreck.
    I don’t see where the TC has any responsibility for ensuring the DC does their job correctly, except maybe give a few subtle hints at the O-club that he should do X, because that’s what he would do. 

  85. Marine JA says:

    If screw-ups in the courtroom were more directly linked to career advancement, would that solve the problem of these occasional yet semi-regular military justice failures? If, say, being found IAC resulted in an adverse fitrep (for the DC or the SDC, or both), would that be a net positive realignment of priorities, or would it be overly harsh?

  86. stewie says:

    It seems to me the fact that we are all shocked that two such inexperienced counsel were assigned to this case is evidence that it’s NOT an institutional problem. The fact that the Navy has changed their policy to hopefully prevent such an occurrence from happening again is evidence that it is not an institutional problem.
    This was an individual leadership problem, and an individual MJ problem.

  87. Cypher says:

    Everyone is criticizing the defense counsel and their supervisors and make it seem like at the time it was totally obvious that DC were being ineffective.  But the DC probably had something going for them in the litigation area.  
    Think about it!  The defense counsel got their client 6 months’ confinement and a dismissal for “false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact”!   That’s a pretty low sentence in my opinion.
    In most jurisdictions this type of sentence for rape would be the real life equivalent of Tom Cruise’s cross-examination of the Jack Nicholson in A Few Good Men!  And the DC did it in their first litigated trail!
    Based on the evidence described by the opinion this looks like it would have been a tough case to try for the defense.  (Yes, I know if the accused had different counsel he might not have been convicted in the first place). It will be interesting to see how this case turns out at the rehearing.  If the accused is convicted again there is a extremely good chance he’ll get way more than six months!
    In my civilian jurisdiction, with sentencing guidelines and mandatory minimums, a conviction for rape would guarantee a lot of prison time!  (I don’t have time to look it up now, but its years and years in prison).  But even if there wasn’t any sentencing guidelines, it would be extremely rare for judge to give such a low sentence for rape.

  88. stewie says:

    Unless they add charges, ultimately he can’t end up worse than what he got at the first trial.

  89. ExTC says:

    This case was originally submitted as a merits appeal. Should this nameless app defender also be stoned publically for failing to recognize any of this, or bring it up to their supervisors attention,  and how has Navy app defense rectified this failure of its app DC to recognize a travesty when initially reviewing it?  

  90. anon says:

    My question is more procedural.  Assuming the Navy decides to re-try, would Edmonds testimony at the first trial be admissible for the purposes of impeachment? Regardless, the defense would be really painted in a box re: calling Edmond to the stand.

  91. John O'Connor says:

    This case was originally submitted as a merits appeal. Should this nameless app defender also be stoned publically for failing to recognize any of this, or bring it up to their supervisors attention,  and how has Navy app defense rectified this failure of its app DC to recognize a travesty when initially reviewing it?  

    I think appellate government counsel should be held responsible for not bringing the deficient performance of appellate defense counsel to the attention of the head of Code 45.

  92. Burt Macklin says:

    I am unclear who, between TC, DC, MJ, Appellate Government, and Appellate Defense, received a plum assignment/promotion out of this and if we are all mad about it. 

  93. Learned Ham says:

    @ Marine JA:
    I don’t think it would be overly harsh to ding attorneys found to be IAC in their FITREPs.  The problem I see, however, is the timing.  This case was tried in 2011.  It then took the NMCCA 4 years to find these attorneys to be ineffective.  To ding them now would be unfair, as nothing they have done during this reporting period (the last year) has anything at all to do with what they did in 2011.  Hopefully leadership accounted for the performance during the relevant period.

  94. RKincaid3 (RK3PO) says:

    Excellent example of how this could and should have been handled, Dew_Process!

  95. Cypher says:

    I was just thinking about the line in the the opinion that states, “[i]n the appellant’s case, the evidence was not overwhelming.  While there was some medical evidence of bruising supporting the alleged victim’s account of the sexual contact, this case ultimately boiled down to the issue of credibility.”  Slip op. at 17.
    This stuck out to me because in the abstract, I myself don’t think I would minimize eyewitness testimony and corroborating physical injuries as “not overwhelming” evidence.  For any other crime wouldn’t this be substantial evidence of guilt and potentially enough for BRD?  Think about how many people are in prison based solely on purely circumstantial cases — with no eyewitnesses at all.
    In any event, wasn’t there a charge and conviction for making a false official statement?  Admittedly, its not clear in the opinion what statement was the basis of the false official.  But, the opinion does state that Appellant denied the sexual intercourse to investigators, but then at trial admitted that he had intercourse.  
    In the abstract, in my opinion, any defendant lying about what happened is pretty strong evidence of consciousness of guilt.  Wouldn’t this also be material evidence?  Especially in any case where the credibility of the complaining witness and the defendant was critical? 

  96. Ed says:

    Cypher- A good lesson from your comment is that unless you are the reporting victim one should never speak with an NCIS investigator without counsel. Never.

  97. Terminal Velocity says:

    I didn’t see any of this case while it was being litigated, and I suspect most of those on this site didn’t either.   There is certainly a lot of lessons learned from this case (e.g. detailing counsel whose experience is commensurate with the complexity of the case) .  However, for those who argue that IAC apparent in the record of trial should have been obvious during the trial itself seem to forget that the battlefield often looks very different after the smoke clears.  Maybe some or all of the train wreck was apparent during the trial (and in this case I wouldn’t be surprised if it was, particularly since it appears it was the DC who self-reported his own IAC to the CA), maybe it was not, but generally speaking the luxury of hindsight should not be discounted when we do the post-mortem sniping.    Before I leap to conclusions on the professional shortcomings of fellow counsel based on what I read online, I would like to hear their perspective.   That is a professional courtesy I think we would all appreciate.

  98. SeaLawyer says:

    If the eye witness testimony is otherwise uncontroverted or unassailable, I’d agree with you.  Without getting into details (many of which are pretty fuzzy at this point since it’s been a few years since I looked at the investigation), she gave a number of inconsistent statements – statements to NCIS that differed from her Article 32 testimony, statements at trial that differed from both, statements to her friend that differed from all 3.  Even the court characterized some of these inconsistencies as “significant.”  The SANE nurse’s testimony also had a number of issues (independent of her felony conviction) that could have easily been fleshed out by experienced counsel.  This should have been a VERY difficult case for the government to secure a conviction in.  I’ve seen much stronger SA cases for the government not get past the BRD standard, let’s put it that way. 
    Putting the Accused on the stand backfired in a number of ways, to include opening the door for the previously suppressed statement.  As to your assertion that him initially denying sex (he actually denied being there that night) is proof that he’s guilty of rape is a bit of a stretch.  Having consensual sex in “the Hall” (as Bancroft is known) is itself a violation.  There are a multitude of reasons why he might initially deny sex (e.g. human nature) short of attempting to cover up a rape.  Ultimately, the members got to see that the Accused wasn’t “trustworthy”, and frankly, the Accused doesn’t present very well — I think he probably came across as a thug.  So when faced with two untrustworthy versions of events, the members picked the more likeable witness. 

  99. SeaLawyer says:

    TV — while I wasn’t allowed to sit in on the trial (members would be likely to recognize the Supe’s JAG in the gallery creating a possible UCI appearance issue), much of it was apparently obvious during trial based on reports I personally received from other members of the command who were observing.  However, I agree with you, much of it was not apparent even to the judge, since many of the facts upon which NMCCA relied didn’t become apparent until the DuBay hearing.  I personally don’t think the TC could have or should have done anything under the circumstances.  Should the judge have?  Tougher question.  Short of sua sponte declaring a mistrial, I don’t know that the judge could do that wouldn’t create other appellate issues.  The first appellate DC had the IAC issued tee’d up beautifully for her by LT S in his post-trial submissions, so the fact that she merited it is pretty shocking.

  100. Appellate Atty says:

    Sea Lawyer, I took the case over from the appellate attorney that submitted the case on its merits. His name is not listed on the opinion.

  101. Cheap Seats says:

    I was in court for much of the trial.  Was it obvious the DC was not that good?  Yes.  That being said, I’ve seen civilian (and military) counsel just as bad (or worse) in other cases.  Those weren’t flipped on appeal for IAC.  In fact, some were acquittals (as this one could have been).  Strickland is a tough standard.  Frankly, the DC calling himself out probably did in this case at the appellate level.  In defense of the TC, the concerns were raised informally with the defense supervisors (who said they had it).  What else is the TC to do?  The TC shouldn’t hold punches nor do the DC’s job.  The TC allowed adequate breaks, encouraged talks with supervisory counsel, etc.  The MJ was trying to get the DC to do his job.  In the midst of trial it is VERY unclear what is tactical and what is inexperience.  I mean, DC had won a suppression motion and did make several good strikes to the evidence not noted in this opinion.  The accused took the stand.  That hurt him.  No way for TC or MJ to jump in the middle of that or say “are you sure?”  Mistrial?  What if the accused were headed for acquittal despite his counsel’s shortcomings.  Mistrial before verdict would have killed that.  None of that was obvious at trial.  So I’m with SeaLawyer on this one – leave TC out of it.

  102. SeaLawyer says:

    Agree with Cheap Seats completely.  Mistrial is a DRASTIC remedy.  And again, a lot of the worst facts (like the fact that DC didn’t prep his client for testimony nor explain to him the possible ramifications of testifying, and clarity on what was tactical vs. accidental) didn’t become known until the DuBay hearing.  I didn’t sign the post-trial advice, but despite LT S falling on his sword in post-trial submissions, we really weren’t sure what the court would do with it on appeal, given that Strickland is such a high standard.  Even though I had/have strong opinions about the case, I don’t think it would have been appropriate for the CA to grant any relief based solely on the admissions of LT S.  If anything, this whole affair reflects quite positively on the appellate process in its current form.  Original appellate defense counsel punted it, the court caught it and course corrected, new appellate DC’s did an outstanding job and the court reached the right result, IMO.  It will be interesting to see where it goes from here.  Someone pass the popcorn. 

  103. Phil Cave says:

    (Not at the trial, haven’t read the ROT)
    The opinion notes one point where the MJ did step in.  (Note, have practiced in front of this MJ and consider him a friend.) Of any MJ’s out there, he is one of several likely to step in if he sees a serious issue arising.  I think CS’s comment and others are likely right, that based on the opinion a significant number of these issues wouldn’t have been obvious to an MJ, including the MJ here who is very definitely paying attention.
    On the institutional issue, (it pains me to say this SF), but I think the USAF may have a better process of “selecting” MDC.  As I understand it, no counsel is certified or sworn initially.  They have to serve first in the SJA office and as TC.  Even then, for their first few cases, they have to be second chaired by a certified counsel.  After a certain number of cases, and with various MJ inputs then they get certified (I think it may be three cases, but I’m not sure if they have to be contested).  After time as a TC and in the SJA shop there is some sort of screening done before they can be assigned ADC.  Someone may well correct or clarify this.
    If the accused doesn’t testify, the BB has an inquiry from the MJ asking if it was a freely made choice of his own.  Will we see something similar when the accused takes the stand?  I’m not sure that’s a good idea.  There is a delicate balance, as others have noted when an MJ is questioning an accused and the team about certain actions.  While tempting, I’m suggesting–please don’t do such a change to the BB.
    There are a multitude of reasons why he might initially deny sex (e.g. human nature) short of attempting to cover up a rape.
    I am not a fan of the Reid Technique as is well known.  But they do say this:

    Almost all suspects, innocent or guilty, will attempt to deny their involvement in the act under investigation.


    In a crime involving a living human victim, such as a rape, robbery or assault, the investigator should first conduct a formal interview of the victim. If the victim’s account is truthful, learning the exact details of the crime will be necessary to conduct an effective interview of the guilty person. On the other hand, if the claim appears to be falsified, much investigative time is saved by carefully scrutinizing the victim’s account. Too often, the “interview” of the alleged victim consists of nothing more than obtaining the necessary information to file a proper report under the assumption that everything the victim reported is factual.

  104. SeaLawyer says:

    Almost all suspects, innocent or guilty, will attempt to deny their involvement in the act under investigation.

    Which is why the original state of the law (simply an “exculpatory no” can’t form the basis for a 107) was much better, IMO — a discussion for another day. 
    I incorrectly used the female pronoun to refer the original appellate DC.  He was not named in the opinion.  I misunderstood an off-line discussion about who that person was.  My apologies.  I know both subsequent appellate defense counsel (1 female, 1 male), so I wasn’t confusing them — and I stand by my assertion that they did an outstanding job.

  105. Cypher says:

    Since this is a law blog I just thought I’d throw out a minor point that struck me when I read the decision.
    This is more of just pure legal question that the opinion raises in my mind and doesn’t relate to the overall case.  The opinion states that, “[t]he trial defense team additionally neglected to review XM’s medical record to see whether any of the bruises or abrasions were documented prior to the alleged assault, as XM was a member of one of the Naval Academy’s sports teams.”  Footnote 10 states that the “record suggests” that the XM had sustained a concussion from her sport.  Slip op. at 13.
    The “record suggests?”  That’s a pretty low evidentiary standard?  Wasn’t there evidence at trial or at the DuBay hearing which showed that the XM’s medical records had actual evidence of the concussion, or that the “bruises and abrasions” at issue could have come from her participation in sports?  DC’s failure to investigate the medical records wasn’t prejudicial if there was nothing relevant in them.  Without the medical records or other actual evidence how did the court assess how prejudicial DC’s failure investigate the victim’s medical records was?

  106. Phil Cave says:

    SL, hold on, please.  Haven’t read the 1105 submission, so don’t know what this means:  “I didn’t sign the post-trial advice, but despite LT S falling on his sword in post-trial submissions, we really weren’t sure what the court would do with it on appeal.[.]’  But it leads to this question.  If I’m reading too much into this you’ll polease let me know if I’m on the wrong track here.
    Here’s my question.
    If the DC admitted to IAC or IAC like actions in the post-trial submissions, why is he not disqualified from doing the 1105 and required to get a new DC assigned.  I have a number of appellate cases where that was the issue identified post-trial and a new DC was assigned, in some the SJA caught it and referred the case to the SDC with a request for new counsel.  There’s a conflict of interest between the client at that stage and his counsel isn’t there?  It is at that stage a new counsel can more properly raise the issues with the SJA/CA and ask for a post-trial evidentiary hearing.  I know that it’s the reason I’ve been hired in a number of cases for the 1105 process.  I suspect Brothers Bill and DP may be aware of other cases.  That’s the first time to do a 38(c) brief as well.

    This right to competent counsel extends through the post-trial phase of the court-martial process. See United States v. Cornett, 47 M.J. 128, 133 (1997).

    United States v. Mazer, 58 M.J. 691, 695, 2003 CCA LEXIS 121, 9 (N-M.C.C.A. 2003).
    This is part of the reason I encourage DC’s to do 38(c) briefs (In any court-martial proceeding resulting in a conviction, the defense counsel—(1) may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review (including any objection to the contents of the record which he considers appropriate).  As Palenius instructs:

    Second, the trial defense attorney should familiarize himself with the grounds or issues, if any, which should be argued during the appeal before the Court of Military Review. These should be discussed with his client and passed on to the appellate defense counsel when that counsel enters the case.

    United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977).

  107. SeaLawyer says:

    Phil, reasonable question.  But does the trial DC’s OPINION that he was ineffective render him automatically conflicted?  Maybe it does.  Is me disagreeing with many of his decisions (since I didn’t see him in court) a basis for me to say he’s conflicted from submitting post-trial matters?  I don’t know for sure, but I don’t think so.  Nor do I think what I can glean from the ROT is, since NMCCA obviously needed more evidence than that, and the judge wasn’t so convinced of his IAC as to have taken drastic action.  [As an aside, I thought LT S was quite effective in representing his client post-trial.]  I know NMCCA thought there was a conflict, which is why they ordered new counsel to submit post-trial matters.  Admittedly, I’m not an expert on conflicts.  I can see where there’s a conflict when trial DC claims he was perfectly effective, but the appellate DC wants to assert he wasn’t.  Not the case here.  When, as here, the trial DC firmly asserts he committed IAC at trial, but does a bang-up job in post-trial (to include getting submissions from some members), is it possible he’s not conflicted for post-trial (or is any potential conflict waivable)?  I’d have to research the issue further.  I played no role in the post-trial matters for Edmond, other than as an interested observer. 

  108. Phil Cave says:

    SL, thanks.
    I don’t think the SJA has to identify IAC sua sponte unless its so obvious an ostrich would see it.  And that’s certainly not what  I meant to say.  So I’m with you on that.
    Break/break.  On the exculpatory no, usually the no goes quite a bit further.  :-) 
    If we are using this blog as an opportunity for teaching moments, as I think we can.  My thought here is that when there is a possibility that IAC may be an issue, either identified by the client or by counsel, the better course is to discuss with SDC, or XO. If it’s the client asking the question, to me that’s almost a no-brainer.  I understand clients can be unhappy with the result and the first person they turn against is counsel.  But if it’s the counsel second guessing their work, perhaps they do a recusal out of an excess of caution.  
    I do think the client can affirmatively waive the conflict, but who does the client go to and get independent advice on that?  I have done 1105’s where the client was unhappy with the counsel, and I’ve advised them to keep the military counsel so long as I am on the case (there are some practical reasons for that, to include not seeing IAC when I read the ROT), expect BB and DP have had the same situations.  If the DC stays on the case but does a bang-up job on the 1105, that to me may go to prejudice and whether the gubmint can get over the hurdle (BRD?).  If the client is not able to identify and to offer on appeal any additional evidence or compelling argument missed, what’s the harm?
    I commend the counsel for integrity.

  109. SeaLawyer says:

    Phil, reasonable COA.  I don’t know that the O-6 SJA thought of it, and I certainly didn’t.  Having seen what NMCCA did with it (initially), I agree, better course is to discuss with the SDC about how he/she wants to handle it, since it would ultimately save time on appeal, benefiting all parties.  But I think you could only do that in a situation where DC claims to have committed IAC.  Otherwise, I’d still be concerned about UCI appearance problems.  Article 37(a) doesn’t stop applying just because we’re in the post-trial phase. 

  110. Phil Cave says:

    Ah, the need for experienced mentoring with an eye to spotting problems, and most importantly trying to solve them before they become worse.
    Mentoring is hard and it goes beyond checklists and guidelines, and . . . 
    As an STC and SDC I used to make my counsel come to me after every trial with the three best and worst things they think they did.  We then discussed, not to critique, but to talk.  Except for one or two who never seemed to learn, those sessions never made it into their FitRep input from me.  Same with the weekly roundtables.  I kinda treated it in the same manner as the medical community with their QA/RM meetings and such–all to learn and be better not to punish.  

  111. ED says:

    Query to a real expert what is the Appellant’s status during a retrial. Is he still a Mid 3rd? At this time does he get his back pay and allowances? what about his loan account that all Mid have?

  112. reallycheapseats says:

    “Try filing”…these topics are easily discussed in theory, but it takes courage to say make an ethical stand on behalf of justice in open court. And that courage is unlikely to go unpunished.

  113. Dew_Process says:

    RE: Conflicts.  As someone who frequently teaches Ethics’ CLE’s, in general there are 3 “foundational” issues to consider in resolving conflict issues:
    1)  Is it a non-waivable, per se conflict, e.g., representing co-defendants with antagonistic defenses?  That’s the easy one because if counsel has accepted “client confidences” from both, s/he is disqualified from representing both.
    2)  Is it a waivable conflict, e.g., representing co-defendants with mutually consistent defenses? Interested readers may want to read the “conflict case,” U.S. v. Smith, 26 M.J. 152 (CMA 1988), to included then CJ Everett’s concurring opinion. [DISCLAIMER: I was Smith’s CDC]. The primary issue was whether the TC had a “conflict” because she had been in the same TDS office as Smith’s DC, who had discussed tactics, facts and the pros and cons of seeking a polygraph.  She then was transferred to the SJA’s office that was prosecuting Smith and gets detailed as TC.  At a minimum, the appearance was horrendous and we spent a full day litigating that where ultimately the MJ ruled that there was no actual conflict and “remedied” the appearance via a Protective Order barring the government from asking any questions to the Accused about any of this.  There was a second “conflict” issue because I represented both co-Accused, who’s defenses were the same, i.e., it was a “consensual 3-way” encounter. That was handled as follows: both Accused kept their Detailed Counsel, we disclosed that to the MJ per U.S. v. Breese, 11 M.J. 17, 21 (CMA 1981), and the MJ conducted a separate “appearance” inquiry with each accused. The MJ then ruled that it was a knowing and voluntary waiver of the “appearance of a conflict” and that was affirmed.
    3)  With respect to the appearance of a conflict, as suggested above where the DC in retrospect decides s/he was “ineffective” at trial, Phil’s response I think is spot-on:

    But if it’s the counsel second guessing their work, perhaps they do a recusal out of an excess of caution.

    This is a delicate line to tread because you do not want to compound the problem by raising a 6th Amendment issue of improperly severing the attorney-client relationship [sometimes the client answers that by getting new counsel], or creating more ethical issues for the lawyer by an “improper” withdrawal.  In general, the first place to look should be the ABA Standards of Criminal Justice, The Defense Function (4th ed.), specifically Standard 4-1.7, available HERE. [scroll down]. Also, keeping in mind Defense Counsel’s Continuing Duties, Std. 4-1.3, and Std. 4-8.1 et seq., on “post-trial” matters as discussed above.  See generally, MAJ Jay Thoman, Conquering Competency and Other Professional Responsibility Pointers for Appellate Practitioners, November 2011, The Army Lawyer, 4.
    While reasonable minds can (and generally do on this Blog for our collective benefit) differ, under the facts here, i.e., the DC declaring himself IAC at trial, I do not think that this can be a waivable conflict. The reason being, that if ex post facto the DC realizes that he performed ineffectively, whether due to inexperience, inattention or lack of preparation, a more “experienced” counsel should be reviewing not only the DC’s IAC claims, but looking to see if there were/are other areas of IAC that the DC may not even be cognizant of in the context of a contested rape case.
    This is another area that (at least until Congress takes it away from us) military defendants have “more rights” than their civilian counterparts through the RCM 1105 process, which is not limited like most States’ post-conviction relief motion provisions. Again, for those interested, Professor Eve Primus [U.Mich. Law] has authored an interesting article entitled, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, available HERE.
    I commend everyone who has contributed to this informative and professional thread – it’s thought-provoking and certainly edifying.

  114. Cypher says:

    This comment does not relate to the overall case, but are just some legal points that stuck out in my mind when I read the CCA opinion.   
    The CCA found cumulative error for setting aside the findings and sentence.  “Cumulative error” is kind of a nonspecific standard, but in my mind it’s like porn, “you know it when you see it.”  With that said, in its opinion the CCA of course acknowledges that not all the instances that it cites would by themselves be IAC.  So, here are some of my:  “Is this is IAC?”, or is this just “cumulative error” questions.  (Need to know, for ahh….I have a friend who asked me about it….)
    1).  The opinion states that because TC decided to not call SA B as a witness it made DC, “feel as if his ‘preparations just [went] up in the air, and [he] had to readjust.’  . . .  When asked if he was prepared in the event that the Government did not call SA B as a witness, [DC’s] answer was, ‘No. I expected she was going to be called first.’ . . . LT S indicated that he had difficulty adjusting to this new development.”  Slip op. at 9.
    “Difficulty adjusting”?  Is that considered a professional deficiency?   (I only ask because my ‘friend’ said that sometimes he has difficulty doing a lot of things and he wonders if that means he must have been deficient in whatever he was doing).  Also, was there specific prejudice from this vague claim of “difficulty adjusting”?
    2).  The opinion states that, “appellant additionally contends that the trial defense team had information at their disposal which suggested that Nurse B had ‘a tendency to chart[] a little too much’ and [the trial defense team] wanted to use this to challenge XM’s sexual assault examination findings.”  Slip op. at 13. 
    What does “a tendency to chart[] a little too much” mean specifically?  (Emphasis added).  What specifically was the evidence that “appellant contends” DC had that would have supported this devastating impeachment allegation that Nurse B had a “tendency to chart a little too much”?  Also, specifically how did the failure to present this undescribed evidence prejudice Appellant? The CCA opinion may have glossed over the details for brevity, but it’s hard to believe that failure of DC to impeach with such a vague allegation would be a deficiency, and even if it was a deficiency that it would be materially prejudicial.
    3).  As for the failure to cross Nurse B on her prior conviction for “conspiracy to pass counterfeit United States currency,” even the CCA acknowledges that, “learned jurists might debate the point as to what, if any, effect this evidence would have had on the members, as well as the admissibility of such evidence.”  Slip op. at 13.  Considering that this prior conviction was 20-years old, I also think that reasonable people reading this opinion could disagree on both whether DC was deficient on this point (let alone whether it was a “glaring omission”), and whether it was prejudicial.  
    The CCA opinion doesn’t say how old Nurse B was when she or he testified, but if Nurse B was 40-years old at the time of trial, then Nurse B was convicted of conspiracy at around 20-years old.  Also, I assume that whatever authority licensed Nurse B to be a Nurse was aware of the conviction.  Would DC have even been able to use a 20-year-old conviction to impeach Nurse B?  Was DC’s failure to impeach Nurse B about the 20-year-old prior deficient?   Was DC’s failure to do so prejudicial?  In my opinion, probably not:  But, I’m not only not a “learned jurists,” I’m at best a person of only average reasonability. 
    4).  See my post above about the medical records issue.
    5).  For DC’s sentencing argument about the dismissal, didn’t the MJ take pretty strong action to correct that error and the potential prejudice from it?  In any event, I think reasonable people reading this opinion could disagree about whether any DC sentencing error was prejudicial in light of the 6 month sentence Appellant received for rape.  See my prior post above, whatever mistakes DC made during the contested phase of the trial, it’s hard to see how their representation of Appellant during the sentencing phase could be considered IAC (deficiency + prejudice). The result of DC’s representation of Appellant for sentencing speaks for itself.  (Maybe an inverse example of res ipsa loquitur?).

  115. k fischer says:

    Is it just me or are we seeing a lot more of sexual assault convictions being reversed at the NMCCA more than ACCA and AFCCA?

  116. Cypher says:

    Now that I think about it, despite the strong language the CCA used (“glaring omission” etc), the CCA didn’t explicitly find any individual thing DC did to be IAC!  Slip op. at 19.   (I guess my questions for the examples I listed above are, “Is this really a deficiency?” and “Is there any prejudice from this specific example?”).
    So why was everyone criticizing the MJ here?  If the CCA, with the benefit of being able to review the entire trial and having the additional benefit of the DuBay hearing, couldn’t find any individual thing DC did to be IAC, what more could the MJ have done?  The opinion shows that he took a number of actions to correct the defense, but its not like he could have sua sponta ruled during the trial that DC’s mistakes had become cumulatively  IAC.
    And why are some of the comments so harsh with the DC?  (This is just a theoretical question, I definitely understand that there is differing view points on this issue and I wasn’t at the court-martial and the CCA decision found it “cumulative” IAC).  It may not have looked pretty, but DC didn’t commit any individual instances of IAC, and in the end they got a very, very, low sentence for their client.  (Based on the false official and the “inconsistencies” described by the CCA in Appellant’s testimony, it looks like they may have had their hands full).
    Also important, there isn’t any evidence in the CCA opinion that Appellant had a problem with DC’s representation at the time.  Appellant didn’t try to fire them during the trial, didn’t complain to the convening authority post-trial (in fact it was DC who appears to have brought up IAC post-trial), or initially complain to the CCA when he was represented by different counsel.  
    Finally, the DC seem to have really fallen on their sword for the client in their affidavits to the CCA and at the DuBay hearing.  
    It’s not only technical performance that makes a good lawyer, sometimes its other less quantifiable factors* that make a good defense counsel.  This could be the litigation performance equivocate of Tim Tebow’s time with the Broncos!!  (I mean this as a compliment because I really like Tebow and hope he shows his stuff* again with the Eagles).  Also, I didn’t see the trial, don’t know anybody involved in this case, only read the CCA opinion, and obviously nobody can really be accurately judged based solely on just one case.
    *Steve McCrosky from Airplane II said it best:  “I can sum it all up in just one word:  courage, dedication, daring, pride, pluck, spirit, grit, mettle, and G-U-T-S, *guts*.  Why, Ted Striker’s got more guts in his little finger than most of us have in our large intestine, including the colon!”

  117. Phil Cave says:

  118. dyskolos says:

    Great discussion!! This is what blogs were meant to be.