Opinion Analysis: The failure to request IMC when a military judge explains the right and invites the request is an affirmative waiver, in United States v. Cooper
CAAF decided the certified Navy case of United States v. Cooper, __ M.J. __, No. 18-0282/NA (CAAFlog case page) (link to slip op.), on Tuesday, February 12, 2019. A nearly-unanimous court finds that an accused’s affirmative failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The court reverses the decision of the Navy-Marine Corps CCA (that found a violation of the right) and remands for further review.
Chief Judge Stucky writes for the court, joined by all but Judge Sparks who dissents.
Every accused at a court-martial is detailed a military defense counsel, free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (IMC), 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) Buyske and Lieutenant Commander (LCDR) Gross. 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 just those two lawyers and by nobody else. But on appeal Cooper claimed that he also wanted to be represented by IMC, and 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 and four issues 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:
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?
A majority of CAAF answers the first issue in the affirmative, finding waiver based on the fact that Cooper “fully understood the nature of the right to IMC and how it would have applied to him,” slip op. at 9, and then told the military judge that he did not want any other lawyer to represent him. The court then orders a remand to the CCA for consideration of other issues that Cooper raised on appeal but the CCA did not address in its initial review.
Chief Judge Stucky’s majority opinion highlights the colloquy between Cooper and the military judge:
Appellee was arraigned on August 20, 2014. After LT Buyske announced her credentials, the military judge asked if any other defense counsel had been detailed to the case or if IMC had been requested. LT Buyske answered, “No, sir.” The military judge then advised Appellee of his rights to counsel, including his right to IMC and that military counsel would be provided free of charge. The colloquy continued:
MJ: Do you understand?
ACC: Yes, sir, I do.
MJ: Do you have any questions about your rights to counsel?
ACC: No, sir, I do not.
MJ: And by whom do you wish to be represented? ‘
ACC: Lieutenant Buyske, sir.
MJ: Do you wish to be represented by any other counsel, either civilian or military?
ACC: No, sir, I do not.
Appellee then entered his pleas of not guilty. At the start of the trial, after a continuance of about a month, the military judge noted the presence of Lieutenant Commander (LCDR) Nathaniel Gross, U.S. Navy, who had not been present at arraignment. After LCDR Gross entered his appearance as the assistant defense counsel, the military judge asked if any other counsel had been requested. LCDR Gross answered: “No, Your Honor.” Neither Appellee nor LT Buyske contradicted this statement.
Slip op. at 3 (omission in original).
Distinguishing between waiver that occurs “by operation of law” and waiver that occurs “by the intentional relinquishment or abandonment of a known right,” slip op. at 6 (quoting United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (CAAFlog case page), Chief Judge Stucky explains that the colloquy establishes affirmative waiver:
The military judge carefully explained to Appellee at arraignment the nature of the right to IMC. Appellee told the military judge that he understood his rights and wanted to be represented by LT
Buyske and only her. The military judge further asked if an IMC was ever requested. Appellee sat mute when she told the military judge that no such request had been made. When LCDR Gross entered his appearance, the military judge again inquired as to whether other counsel had been requested. And when LCDR Gross told the military judge that no request for IMC had been made, Appellee again remained mute.
The purpose of the IMC colloquy is to ensure the accused receives an explanation of the full panoply of his rights to counsel unfiltered by the detailed defense counsel and for the military judge and appellate authorities to satisfy themselves that the accused was represented by the counselof his choice. The military judge’s colloquy with Appellee concerning his right to IMC was unequivocal. The military judge spoke directly to Appellee and received direct answers back without the filter of the defense counsel. If Appellee had wanted other counsel he should have said so. Instead, he declined other counsel and told the military judge that he wished to be represented by LT Buyske and no other counsel. And he sat mute when the military judge questioned LCDR Gross concerning whether other counsel had been requested.
Appellee fully understood the nature of the right to IMC and how it would have applied to him. See Ruiz, 536 U.S. at 629–30. We conclude that he knowingly and intelligently waived his right to IMC.
Slip op. at 8-9.
Only Judge Sparks is unconvinced. His dissenting opinion begins with the “submi[ssion] that the record reveals no indication that Appellee knowingly, voluntarily, and intelligently waived his IMC claim.” Diss. op. at 1. He then focuses on the advice Cooper received from his defense counsel and the majority’s reliance on Cooper’s mere lack of protest:
At the DuBay hearing, when Appellee was asked why he named LT Buyske and not another attorney as his choice to represent him, Appellee testified:
I had no reason to, like, they had all been denied, you know. That was the last person I had, and after they asked who I wanted to be represented by. I didn’t know to bring up other—other IMCs that had been denied, so at that time, like, I wanted [LT] Buyske to represent me because my other requests had been denied.
LT Buyske’s advice to Appellee left him with the false impression that his request for CPT Neumann as his IMC had been denied. Based only on this erroneous advice did Appellee inform the military judge that he wanted to be represented by LT Buyske. After reviewing the DuBay judge’s factual findings, I do not conclude that Appellee had the minimal level of understanding regarding his right to an IMC necessary to knowingly, voluntarily, and intelligently waive this fundamental right.
Furthermore, the majority’s position that Appellee should have interrupted his defense counsel when defense counsel was asked whether any “individual military counsel [had] been requested in this case” is beyond what the military justice system should expect from an accused. In the majority’s view, an accused in this kind of situation can only avoid waiver if he stands up and directly attacks the actions of his attorney in open court. I cannot imagine many servicemembers doing so.
Diss. op. at 2-3.
• NMCCA opinion
• Appellant’s (Gov’t Div.) brief
• Appelllee’s brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis