CAAF split 3-2 today, ruling that a possible conflict of interest by a trial defense counsel’s overlapping assignments as a DC and a TC required additional factfinding. United States v. Lee, __ M.J. ___, No. 07-0725/MC (C.A.A.F. June 13, 2008). Judge Baker wrote for the majority joined by Chief Judge Effron and Judge Erdmann. Judge Ryan wrote for the dissent joined by Judge Stucky.

While Capt Lee knew that his TDC was prosecuting some “minor offenses” as a TC while he was finishing up his assignment in defense, Capt Lee stated that only after he was tried and convicted did he learn “that his detailed counsel had actually been working as a prosecutor on another serious case while simultaneously representing him. Moreover, in this other case, his detailed counsel was working for the same trial counsel prosecuting his case.” Id., slip op. at 3. Capt Lee was simultaneously represented by a retained civilian counsel.

The majority observed that “case law varies on whether the simultaneous representation of the United States and a defendant results in per se prejudice or whether the defendant must at least show that the conflict adversely effected his counsel’s performance.” Id., slip op. at 6.

It doesn’t appear that CAAF takes either side in that legal dispute. Instead, the court concluded that “it is necessary for us to remand this case for further findings and conclusions of law.” Id., slip op. at 8. In an appendix, CAAF set out nine factual issues that should be resolved at a DuBay hearing. See id., slip op. at 10.

The dissent cast the case as an inquiry into whether “an actual conflict of interest adversely affected [Capt Lee’s] lawyer’s performance.” Dissent at 1 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). The dissent concluded that a remand for further inquiry concerning the military defense counsel’s potential conflict is unnecessary because “Appellant fails to show, or even allege, prejudice or deficient performance by either the potentially conflicted detailed counsel or his privately retained civilian counsel.” Dissent at 1-2. The dissent also relied on the Supreme Court’s opinion in Mickens v. Taylor, 535 U.S. 162 (2002), for the proposition that an actual conflict of interest occurs only where a conflict “affect[s] counsel’s performance” rather than simply suggesting a “theoretical division of loyalties.” Dissent at 5-6. The dissent concluded, “Where, as here, Appellant has not alleged any deficiencies in his detailed counsel’s performance, it is unnecessary to resolve the question whether defense counsel actively represented conflicting interests because Appellant cannot establish prejudice under Cuyler.” Id. at 6.

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