A potential conflict of interest troubles the Army CCA in a case that raises a new concern about victim mental health records
In a published decision in United State v. Vidal, __ M.J. __, No. 20130892 (A. Ct. Crim. App. Jun. 21, 2016) (link to slip op.), a three-judge panel of the Army CCA orders a DuBay hearing to determine whether the appellant’s civilian appellate defense counsel has a conflict of interest.
A general court-martial composed of members with enlisted representation convicted Staff Sergeant Vidal, contrary to his pleas of not guilty, of numerous offenses in connection with a single sexual encounter in Afghanistan involving two junior soldiers, one male (SPC JA) and the other female (SPC JO). Vidal was sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The other male soldier, SPC JA, was a co-accused (both were accused of sexually assaulting SPC JO), and was administratively discharged in lieu of trial by court-martial after Vidal’s trial concluded.
The civilian counsel representing Vidal on appeal did not represent him at trial, but did represent SPC JA and successfully obtained the administrative discharge for SPC JA. The civilian then undertook representation of Vidal for post-trial matters and for appeal, first seeking a post-trial administrative discharge for Vidal and then arguing on appeal that Vidal received ineffective assistance of counsel at trial. The ineffective assistance claim was based upon the failure of Vidal’s trial defense counsel to seek SPC JO’s (the alleged victim’s) mental health records that were – the appeal asserts – completely exculpatory and instrumental in obtaining the administrative discharge. However, the civilian attorney had knowledge of the contents of the records (from his representation of the co-accused) but seemingly did not make full use of that knowledge during his post-trial representation of Vidal.
Accordingly, the CCA finds that:
[B]y arguing that the trial defense counsel was ineffective and lost appellant’s chance at an administrative discharge, it appeared he was also arguing his own ineffectiveness during post-trial representation of appellant. This presented us with what appeared to be a conflict of interest.
Slip op. at 5.
Significantly, the opinion “only attempts to identify potential conflicts of interest,” and the CCA observes that “nothing in this opinion should be construed as a finding of misconduct.” Slip op. at 11 n.7 (emphasis in original).