The NMCCA reverses a GCM due to a “sepsis of undisclosed conflict [of interest]” involving a Marine defense counsel, her Marine trial counsel husband, and the husband’s Marine superior (who prosecuted the case)
In a lengthy opinion in United States v. Hale, __ M.J. __, No. 201600015 (N.M. Ct. Crim. App. May 31, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses convictions of rape, violating a general order, adultery, indecent language, wrongful use of steroids, assault with a dangerous weapon, and kidnapping, and the sentence that included confinement for 26 years.
The reversal is because of a conflict of interest between the lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The defense team included a second Marine captain (identified as Capt JS) who “the appellant requested . . . as individual military counsel.” Slip op. at 3.
Judge Fulton writes for the panel (which includes Chief Judge Glaser-Allen), concluding:
The record convinces us that Capt KC’s representation was adversely affected by the conflict of interest. The conflicts presented in this case were obviously significant and upsetting to Capt KC. After Capt KC moved to dismiss the charges involving SK because of the GHQE’s text messages, LtCol CT—her prospective RO and her husband’s current RO—accused the defense of unethical conduct. LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt KC to audibly sob at counsel table, and she was unable to continue.
Slip op. at 22 (ellipses in original) (emphasis added). As a result:
The sepsis of undisclosed conflict in this case infects much of the record. Even the post-trial Article 39(a) session did not convincingly diagnose the full extent of the conflict or its prejudice. A member of the public fully informed of the facts of this appellant’s representation would not have faith in the process that led to these convictions. It is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved.
Slip op. at 28.