On Monday – the last day of the 2018 term – CAAF granted review in this Marine Corps case:

No. 19-0376/MC. U.S. v. R. Bronson Watkins. CCA 201700246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. A CONFLICT OF INTEREST EXISTS WHERE THE INTERESTS OF AN ATTORNEY AND DEFENDANT DIVERGE ON A MATERIAL FACTUAL OR LEGAL ISSUE, OR A COURSE OF ACTION. THREATS BY REGIONAL TRIAL COUNSEL AND A REGIONAL TRIAL INVESTIGATOR TOWARDS CIVILIAN DEFENSE COUNSEL CREATED A CONFLICT OF INTEREST BETWEEN CIVILIAN COUNSEL AND APPELLANT. DID THE MILITARY JUDGE ERR IN DENYING CIVILIAN COUNSEL’S MOTION TO WITHDRAW?

II. THE SIXTH AMENDMENT GUARANTEES AN ACCUSED THE RIGHT TO RETAIN COUNSEL OF HIS OWN CHOOSING. BEFORE TRIAL, AND AFTER HIS CIVILIAN COUNSEL MOVED TO WITHDRAW—CITING A PERCEIVED CONFLICT OF INTEREST—APPELLANT ASKED TO RELEASE HIS CIVILIAN COUNSEL AND HIRE A DIFFERENT COUNSEL. DID THE MILITARY JUDGE ERR BY DENYING THIS REQUEST?

III. DID THE LOWER COURT ERR IN RATIFYING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S REQUEST FOR CONFLICT-FREE COUNSEL, WHERE IT: (A) FOUND THE REQUEST WAS IN “BAD FAITH,” BASED ON ALLEGED MISBEHAVIOR BY APPELLANT OCCURRING BEFORE THE RTC’S UNEXPECTED THREATS; AND, (B) TREATED THE MILITARY JUDGE’S FINDING THAT APPELLANT’S REQUEST FOR COUNSEL WAS “OPPORTUNISTIC,” AS A FINDING OF FACT INSTEAD OF A CONCLUSION OF LAW?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. It reveals that:

The appellant was represented by a civilian defense counsel, retired Marine Corps judge advocate Mr. W. After an angry off-the-record exchange between Mr. W and the Regional Trial Counsel, LtCol K, Mr. W moved to withdraw from the case and the appellant stated that he no longer wished to be represented by Mr. W. The military judge did not permit Mr. W to withdraw, and the appellant claims on appeal that Mr. W was encumbered by a conflict of interest.

Slip op. at 3. The CCA found no conflict of interest and affirmed.

10 Responses to “CAAF grants review in a case about an accused’s choice of counsel and a civilian defense counsel’s potential conflict of interest”

  1. Matt says:

    It seems the court is saying that because the RTC and NCIS said they are not currently investigating the CDC, there is no conflict. I think that horse left the barn as soon as the RTC appeared to threaten such an action. The promises made in this trial would not be binding on a future ethics claim. The CDC still has the same conflict.

  2. Philip D. Cave says:

    IMHO,
    CDC made the right call in seeking to withdraw.
    I agree with Matt (above) that the possibility of later adverse action lingers. Should we not also consider the appearance problem underlying–what would the public think. We apply the appearance doctrine in a number of situations–members recusal, MJ conflicts, etc., etc., etc. Not saying it’s a winner, but should it at least be considered. While appellate courts avoid advisory opinions, there’s an opportunity to make appearances part of any future test.
    While way outside the box, did anyone consider a non “prosecution,” a similar letter, or something in writing from the CA and or USA, as an alternative to people saying there’s no beef here?
    I acknowledge the “opportunism” which may distinguish the case from others. But is there a difference between the critical MJ and a threat directed?
    I thought 2019 U.S. CMCR LEXIS 6 interesting reading.

  3. David "Sid" Sheldon says:

    Wow.  This is concerning on so many, many levels.  The judge was wrong the way he framed it, but everyone else was asleep at the wheel so, “oh, well!”  Wow is right.  What’s even so, Judge Crisfield concurred…  GD.  What happened to this world?
     
     

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

    Unbelievable.  This is akin to UCI–just the appearance of this is bad juju.  I got it that Watkins doesn’t come to the table with clean hands, but I would expect a lieutenant colonel to be mature about the situation and not make threats.  Appellant was in pretrial confinement.
     
    It is unbelievable that the agent never read the texts exchanged between Watkins and his defense counsel.  The military judge should have thrown the BS flag on that.  Should have also thrown the BS flag on LtCol K’s testimony that he was referring to Watkins instead of civilian counsel.
     
    United States v. Beckley, 55 M.J. 15 (C.A.A.F. 2001), might be instructive on this issue.

  5. Bill Cassara says:

    Odds that LtCol K got dinged on his OPR?  Zero.

  6. Vulture says:

    Odds of an overturn – 10%.
    Odds of an Olshen dissent – 50%.

  7. Pontius says:

    I must be the only person troubled by CDC’s actions.  One of two scenarios must be true, and both reflect terribly on CDC. 
     
    First, CDC was involved in some way with the witness’s avoidance of service.  If true, then (for once) I agree with the defense community that there was a conflict of interest.  To defend himself or lessen his culpability, CDC would likely need to pin the blame on his client.  But no posters thus far seem to acknowledge that this is a possibility (in my mind, the highly likely possibility).
     
    Second, the CDC was not involved whatsoever in the scheme to avoid service.  If this is true, then there is no conflict.  Law enforcement and Lt Col K took the stand and testified under oath that they had no evidence implicating CDC and had no plans to go after him.  If the Defense had evidence to the contrary, they could have offered it but they didn’t.  CDC feeling butt hurt by comments from Lt Col K do not amount to a threat- it did amount to an opportunity though..  CDC  seized on the conversation as a pretextual way to delay the trial again.  A tried and true defense tactic.  This time, maybe, just maybe, the government’s witness wouldn’t be available.  Unfortunately for CDC and his child molester client, both the MJ and appellate court saw through the ruse.
     
    Odds of the defense community condemning defense counsel when they misbehave- 0%

  8. Alfonso X says:

    I don’t see the problem with CDC’s actions, the MJ’s ruling, or the appellate decision. Those were all correct. LtCol K is numbskull. I am interested to know more about the NCIS process to screen-out any attorney-client communications.

  9. Vulture says:

    Retired military CDC is subject to UCMJ jurisdiction according to (maybe) Begani.  Sounds like a conflict to me.

  10. stewie says:

    I think the appellate decision is understandable, but both CDC and LtCol K did things I highly question. But ultimately, I don’t really know exactly what was said, or what the CDC was thinking. There does appear to be some possible motive for delay given the difficulty of government in getting critical witnesses, so there’s a potential motive here.
     
    Ultimately, the part that’s toughest for me is that the accused also has a real reason to not want this CDC as his attorney anymore, and that was the part that seems most ignored here and gives me the most pause. I don’t think the accused was playing games, he was legitimately concerned that his CDC didn’t have his best interest in mind on the eve of trial. That’s gotta be a horrible position to be in.

Leave a Reply