CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.

First, the certified case:

No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE’S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?

IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN IT’S PREJUDICE ANALYSIS FOR APPELLEE’S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?

The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:

In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.

Slip op. at 23. For the waiver issue, the CCA found:

To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.

Slip op. at 19.

Next, the granted case:

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted on the following issues:

I. WHETHER APPELLANT’S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT’S WIFE IN APPELLANT’S ABSENCE.

II. WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A “DEAD-END” UNTIL THE WARRANTLESS SEARCH.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here and explains that:

Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.

Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).

4 Responses to “A certification (about IMC) and a grant (about a search)”

  1. Former DC says:

    Very interesting opinion in Cooper.  Well written and thoughtful.  I doubt CAAF will reverse.
    That said, there is one critical problem: this smells like it could turn into a “right without a remedy”.  CCA did not do anything other than order a rehearing.  So the rehearing goes like this: Cooper asks for CPT T.N. this time, but because the facts have changed, CPT T.N. is not reasonably available now, and thus, we are right back where we started.
    I understand the potential for the CCA exceeding its authority by ordering CPT T.N. to be made available, and I admit I have no time today to look at the case law to see what CCA could have done.
    Instead, I make this observation for the defense counsel who has to deal with this soon: Look at what the U.S. Supreme Court talked about in Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013).  Seems like an odd case to cite in a court-martial, yes?  In that case, especially in oral arguments, but in the opinion also, the Court talked about awarding custody by estoppel.  What it meant was, if you allowed the “best interests of the child” standard to move in time with the case, then the first determination of custody will always be the final one, because it will never be in the child’s best interest to move them years later after the appeals process is completed.  The Supreme Court refused to do so, stating instead that the analysis froze in time at the moment it was first made, so that the reversal had the potential to mean something.
    The same logic applies here.  The “reasonably available” decision must be frozen in time.  If that means the government has to deal with expense and inconvenience, that is unfortunate, but they are charged with the error (yes, I know, this particular circumstance technically is IAC, but close enough).  To do otherwise is to encourage bad behavior, because the IMC decision will be made by estoppel.  Counsel move on, retire, or separate, and the appeals process takes time.  While it may be a hassle, that’s the price of errors sometimes.
    One other point that annoys me: the affidavit from the DC throwing Cooper under the bus.  I was taught as a defense counsel years ago to either support a client’s IAC claim or remain silent, invoking Art. 31 and my state bar rules, if necessary.  Disappointing what happened here.

  2. Ed says:

    Wouldn’t it be appropriate given the passage of time for Defendant to ask for different IMCs?

  3. Tami a/k/a Princess says:

    I would say either the government brings CPT TN back onto active duty, and if they don’t, rehearing isn’t going to happen.  I agree with Former DC that you have to put Cooper back into the position he would’ve been in but for the “mistake.”
     
    Of course, Cooper should’ve been supported by defense counsel to begin with, instead of “wait until charges are preferred and then we can assign you someone.”  Navy needs to revamp their rules on this issue to create attorney-client relationship when the accused is under investigation.

  4. CPT TN says:

    I am the IMC requested by Cooper.  He has been railroaded from the beginning in one of the worst IAC cases one can imagine.  The government contends that Cooper first brought up the IMC issue on appeal but that is patently false.  I spoke with the TDC after the verdict but before certification, and advised her of her IAC, the Army regulations, and my availability.  I then insisted she request an immediate article 39a session to make the MJ aware of the situation and she refused.  Cooper did the same and she refused again.  Cooper is factually innocent, yet his attorney did not bother to investigate any of the allegations prior to trial.  His defense team was pathetic, and when it was over they tried to wash their hands while he languished in prison.  Before the TDC realized what she had done, she admitted her error…but then when the wheels started to come off, she completely changed her story.  I would gladly jump at the opportunity to represent him if a new trial goes forward…and the Navy had better get the best trial lawyer they have ever had.