CAAF will hear oral argument in the certified Navy case of United States v. Cooper, No. 18-0282/NA (CAAFlog case page), on Tuesday, December 4, 2018, at 9:30 a.m. Four issues related to Cooper’s choice of defense counsel were certified to CAAF:

I. 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?

II. 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?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. 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?

Persons accused of criminal offenses in the civil courts are generally appointed an attorney to represent them only if they are indigent. Every accused at a court-martial, however, is detailed a military defense counsel free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (however that person must be reasonably available as determined by service regulations that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) JB and Lieutenant Commander (LCDR) NG. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by LT JB and LCDR NG and by nobody else. But Cooper also wanted to be represented by individual military defense counsel (IMC), and on appeal Cooper claimed that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result.

The Government Division’s brief highlights the difference between procedural waiver and actual waiver:

Different types of waiver exist, including: (1) procedural waivers that directly result from failure to take an action; and, (2) knowing and voluntary waivers resulting from affirmative statements from or on behalf of an appellant.

Gov’t Div. Br. at 3. It claims that both kinds of waiver apply in this case.

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture – not waiver – and a forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial). But there are evidentiary and procedural rules that turn some failures to object at trial into waivers.

The Government Division argues that such a procedural rule applies to this case. R.C.M. 905(b)(6) states that motions related to the denial of IMC must be made before entry of pleas, and R.C.M. 905(e) states that failure to make a motion required to be made before entry of pleas “shall constitute waiver.” CAAF recently explained, in United States v. Hardy, 77 M.J. 438 (C.A.A.F. 2018) (CAAFlog case page)), that the use of the word waiver in R.C.M. 905(e) truly means waiver (and not forfeiture, even though military and civilian jurisprudence often uses the word waiver to mean forfeiture). So, argues the Government Division in its brief, CAAF “should apply the plain language of R.C.M. 905(e) and find Appellant waived this issue.” Gov’t Div. Br. at 25.

The Government Division also argues that actual waiver applies, because “Appellant personally and through counsel waived any right to individual military counsel,” at trial. Gov’t Div. Br. at 28-29. Among other things, Cooper “affirmed that he understood his right to request individual military counsel—and that he wanted to be represented by [only] his Trial Defense Counsel.” Gov’t Div. Br. at 29 (citing J.A. 78, 87-88).

Cooper’s brief responds by likening the right to request IMC to the constitutional right to choose one’s own defense counsel. Waiver of constitutional rights generally requires a very specific common understanding of what right is being waived, and Cooper seeks to apply that standard to the waiver of the statutory right to request IMC. While acknowledging that “neither the Supreme Court nor a majority of this Court have weighed in on whether the Sixth Amendment right to counsel of choice extends to selection of individual military counsel,” App. Br. at 21, Cooper’s brief asserts that:

As the Supreme Court recognized in Gonzalez-Lopez, the right to counsel of choice does not apply to all criminal defendants, but only those who can afford to pay. If the defendant loses the ability to pay, he also loses the Constitutional right to counsel of choice. By establishing the right to select military counsel of choice, Congress put service members on the same constitutional footing as those defendants contemplated in Gonzalez-Lopez—the ones that could afford to select counsel of choice.

App. Br. at 23. The brief doesn’t directly address the Government Division’s procedural waiver argument (or even reference R.C.M. 905), but it does assert that Cooper did not make a motion for IMC based on the (allegedly erroneous) advice of his detailed defense counsel:

The manifest weight of the evidence is clear, YN2 Cooper wanted an IMC. Acting on erroneous advice from LT [JB]—that the three judge advocates he identified as IMC were not reasonably available—YN2 Cooper told the military judge he wanted to be represented by LT [JB]. (J.A. 79.) This was not a valid waiver because it was not knowing and intelligent.

App. Br. at 27-28. Cooper also argues that he received ineffective assistance of counsel from his detailed defense counsel; ineffective assistance of counsel generally excuses any procedural waiver (because the ineffective counsel – not the accused – is responsible for the failure to object).

The Government Division’s waiver argument is likely to be very appealing to CAAF, particularly considering that Cooper personally told the military judge that he did not want to be represented by anyone other than his detailed counsel. While it’s probably unreasonable to expect a military accused to have a rigorous dialogue with a military judge about his choice of defense counsel, it’s entirely possible that CAAF will expect that an accused who really wants IMC will say something when asked about it.

Beyond the waiver argument, however, the Government Division also attacks the framework the CCA used to review this issue. The CCA observed that under the ordinary test for ineffective assistance of counsel (the Strickland standard), the burden would be on Cooper to show that had he received the IMC he wanted then the result at trial would have been different. But the CCA didn’t apply that standard; instead it merely looked for ordinary prejudice. The Government Division thinks that’s the wrong approach:

The lower court erred by declining to apply Strickland. If his statutory right to request individual military counsel was deprived at all, it was by the inaction of his defense counsel—not the Military Judge or any other government actor. Thus, any alleged error should be evaluated under Strickland.

Gov’t Div. Br. at 40. Cooper somewhat agrees that the CCA took the wrong approach, but in the opposite direction. Cooper asserts that this is a structural error (meaning that it requires automatic reversal):

Even if the error is attributable to defense counsel—and not improper government or judicial action—deprivation of an autonomous fundamental right such as the right to counsel of choice amounts to structural error. . . .

A criminal defendant is only afforded a handful of autonomous rights that he, and only he, can make. Id. at 1508. The right to counsel of choice is one of those autonomous rights.

App. Br. at 36-37. The CCA did not consider this to be a structural error. It didn’t even apply a presumption of prejudice (which I think is something different from structural error, because a presumption of prejudice might be overcome while a structural error is irredeemable). So it seems unlikely that CAAF will deem this a structural error. Ultimately, however, Cooper argues that if the CCA should have applied the Strickland standard, then “this case must be remanded” to the CCA to conduct that analysis in the first instance. App. Br. at 42.

The remaining issues focus on the facts of the case and whether Cooper’s desired IMC was actually available under the regulations implementing the right. The CCA concluded that the IMC was available. The Government Division challenges that conclusion while Cooper defends it. The CCA also concluded that Cooper was prejudiced by the absence of the desired IMC. The Government Division contends that Cooper was not prejudiced because he testified in his own defense at trial and:

it was Appellant’s own testimony, not the quality of representation, that resulted in Appellant’s conviction.

Gov’t Div. Br.  at 61. Cooper’s brief, however, accuses his detailed defense counsel of a significant number of specific failures:

Yeoman Second Class Cooper received ineffective assistance of counsel when LT [JB]:

  • failed to submit three by-name requests for IMC,
  • failed to challenge the expert opinion of the Government expert’s testimony on the subject of tonic immobility,
  • failed to retain and utilize an expert witness who could have provided beneficial information to rebut the Government’s theory of the case,
  • failed to complete YN2 Cooper’s testimony by ending her direct examination earlier than agreed,
  • failed to interview sentencing witnesses identified by YN2 Cooper,
  • failed to file a motion to sever the charges involving two different victims,
  • failed to challenge the sufficiency of the Article 32 investigation,
  • failed to move to suppress an unlawfully seized statement, and
  • failed to effectively cross-examine the complaining witness.

(J.A. 2, 786, 797-797-798.) Alone or cumulatively, these errors undermine the Government’s contention that depriving YN2 Cooper of the right to have [the desired IMC] represent him as IMC is “wholly collateral to the underlying facts of his conviction.” (Gov’t Brief at 62.) Here, the selection of counsel permeated all aspects of the court-martial.

App. Br. at 52.

Case Links:
NMCCA opinion
Appellant’s (Gov’t Div.) brief
Appelllee’s brief
Appellant’s reply brief
Blog post: Argument preview

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