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.

Case Links:
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

11 Responses to “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”

  1. Vulture says:

    In whole-hearted agreement with Judge Sparks.  It would be impractical for an Accused to make such a gesture.  Judge Sparks may not be thinking in this direction, but the disturbance to normal court-martial pageantry would see the Accused cuffed in a straight jacket.

  2. Tonto Bubba Goldstein says:

    The majority opinion reads like the judges have no idea how courts-martial work.  No way an accused would call out his attorneys in open court.  These are folks used to abiding by rank structure.  

  3. TC says:

    But the judge specifically asked the accused if he wanted to be represented by anyone else.  He answered negatively, his lawyer didn’t answer for him.  If he was unwilling to speak up because he didn’t want to offend his LT defense counsel, bad on him.

  4. slyjackalope says:

    The military judge isn’t talking just to hear himself talk.  If Private Snuffy is too dumb to realize that’s the time to speak now or forever hold your peace, that’s on him.  How hard would it have been to say, “Your Honor, I like LT Buyske but can I have [IMC Counsel] to help her as well?  I hear he’s the shiznit!”  The MJ would tell him he’s only entitled to one but it would force defense counsel to discuss whether any efforts have been made to obtain the other counsel.

  5. Vulture says:

    Now why would he be afraid of offending someone that doesnthave any say in the matter?

  6. stewie says:

    So as I understand it, the accused knew he had a right to request IMC counsel. He was told, apparently erroneously, that his request for IMC counsel had been denied. Thus, when asked by the judge, and based on that erroneous advice from his counsel, he said nothing/no because he thought he’d requested and been denied.
    One assumes had he realized his request was still viable/active, he would have named the person he was requesting. So I’m struggling to see where the accused is wrong here, or where this isn’t the fault of defense counsel.

  7. Concerned Defender says:

    I tend to agree with Judge Sparks, in that the confusion caused by the situation is more than the burden that an accused ought to carry.  I think lawyers who routinely practice this are not good at remembering or understanding that these trials are complex, scary, and the information flow to an accused is akin to drinking from a fire hose.  I believe strongly that any errors ought to be viewed most reasonably and favorably for the accused on trial.
    Now, we can’t have every accused later claim they wanted an IMC as an appellate issue; but here there apparently was an intention and incorrect information about a denial.  So this doesn’t appear to be a fabricated issue for appeal, but one with real meat.  Apparently there was a Captain who had been sought/requested…  “LT Buyske’s advice to Appellee left him with the false impression that his request for CPT Neumann as his IMC had been denied.”

  8. Vulture says:

    It might be worth looking at this from the point of view of Baker’s dissent in US v. Moss.  There he asks “What actions may or should defense counsel take at trial without the informed consent of the client?” p.8 of dissent.  He prefaces this with “… by focusing exclusively on the culpability and conduct of the accused and not on the credibility of the system as a whole, the majority removes the prospect of civilian and even military appellate review …” 
    Judge Sparks may not have been thinking in this direction because the Moss case involved a trial in abstenia.  However, the majority readily attributes the damage to the Accused here, losing its credibility as a neutral arbiter.  The fact is that there was no informed consent from the Accused and the Court of Criminal Appeals found that to be damaging.  The CAAF majority just want’s to be able to dispose of cases en mass.  
    Judge Baker’s concern was well founded.  Any war of major scale will result in a slew of military justice cases.  Being able to dispose of them for the reasons in Denado, or Rodriguez or LaBella only serves the interest of the Department of Defense and the services.  Undermining review, whether military or civilian, serves those interests too.  CAAF undercut a service court in the name of waiver.  But they are showing us all a good example of abdication themselves.

  9. stewie says:

    Or Vulture, they acted in good faith and just got this one wrong without “abdication” or some other great desire to do something horribly evil.
    Every case that comes out in a way you don’t agree with isn’t some grand example of how horrible everything is.

  10. Vulture says:

    Did you just try give me a completely dichotomous choice between the plausible and the asinine?  That is the way it looks.  Good faith v. something horribly evil.  You even took it one step further into the uncanny valley of “something.”  Oh look, there is another nebulous “some” (grand example) followed by the impossible “everything.”
    Forget abdication, or waiver, or acquiesce, or even evil.  Let’s consider the word example: 
    In Berry it was the sentiment of a Convening Authority begging to cure a lack of leadership.  My retort to the CAAF is, “Where is yours?”  This all for the same reasons as above. 

  11. stewie says:

    You must be fun at parties.