Audio of today’s oral arguments at CAAF is available at the following links:
Argument Preview: Considering a military accused’s right to request specific military defense counsel, in United States v. Cooper
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.
CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.
First, the certified case:
No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
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?
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?
IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?
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?
The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:
In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.
Slip op. at 23. For the waiver issue, the CCA found:
To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.
Slip op. at 19.
Next, the granted case:
No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted on the following issues:
I. WHETHER APPELLANT’S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT’S WIFE IN APPELLANT’S ABSENCE.
II. WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A “DEAD-END” UNTIL THE WARRANTLESS SEARCH.
Briefs will be filed under Rule 25.
The Army CCA’s decision is available here and explains that:
Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.
Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).