NMCCA today released its published opinion in United States v. Lee, __ M.J. __, No. 200600543 (N-M. Ct. Crim. App. July 28, 2011).  The case isn’t yet on NMCCA’s website, so we’ve uploaded it here.

Capt Lee was represented by both a civilian defense counsel and a Marine Corps captain — Capt Reh — as detailed defense counsel.  Soon after charges were referred against Capt Lee, Capt Reh had transitioned to the trial shop.  During the litigation of Capt Lee’s case, which featured mixed pleas, his trial defense counsel’s reporting senior was the same TC who was prosecuting Capt Lee. Capt Lee was never informed that Capt Reh worked directly for the prosecutor in his case.  Nor was Capt Lee told that his detailed defense counsel was working with the trial counsel to prosecute a high-visibility homicide case contemporaneously with his court-martial.

NMCCA found that the extent of the trial defense counsel’s conflict was unknown to Capt Lee and his civilian counsel.  The opinion noted, “with some disbelief and disapproval, that none of the counsel involved brought this potential problem to the attention of the military judge, the independent person in the best position to gather facts and to make rulings in the interest of justice.”  Id., slip op. at 5 (internal citation omitted).  The court continued, “The record reveals a troubling lack of transparency before the tribunal and an even more troubling failure to recognize the conflicts, real or perceived, occasioned by Capt Reh’s assignment as a direct subordinate of the prosecutor in this case.”  Id.

NMCCA concluded that Capt Lee didn’t have a viable IAC claim.  Id., slip op. at 6.  The court also concluded that there was no demonstration of prejudice, thereby precluding reversal on conflict grounds.  Id., slip op. at 6-7.   The court also declined to find structural error, citing CAAF’s Hutchins decision.  See id., slip op. at 7-8.  Nevertheless, NMCCA ordered relief, relying on its Article 66(c) mandate to do justice.  NMCCA declined to approve the findings or sentence.  It authorized a rehearing on the findings.

NMCCA explained:

We . . .  focus[] on the chain-of-command relationship between the uniformed defense counsel, Capt Reh, and the prosecutor in this case, Maj Keane, and the failure of any attorney, either within the defense technical chain or the prosecution technical chain, to bring the matter to the attention of the military judge for discussion on the record.  Taking that approach  . . . leads us to our conclusion to afford relief to the appellant under Article 66, UCMJ.

Id., slip op. at 8.

NMCCA emphasized that Capt Reh wasn’t disqualified from serving as Capt Lee’s defense counsel.  Id.  But in this case, the accused never made an “intelligent decision to waive conflict-free counsel” because he received insufficient information about Capt Reh’s new duties to allow him to do so.  To avoid a repetition of what occurred here, NMCCA announced this requirement:

[W]hen a defense counsel is assigned duties that place him in the rating chain of the trial counsel, defense counsel must advise the client and any co-counsel of the potential conflicting interests and then arrange for the client to be advised by a disinterested party as to the necessity for a waiver.  Defense counsel must notify the military judge of the potential conflict; failing that, trial counsel, as an officer of the court, must do so.  Only when the military judge is satisfied that the client understands the right to conflict-free counsel and waives any disability may the trial progress; however, in the interests of justice, the military judge may consider other remedies such as disqualification of the trial counsel from further participation, or alteration of the rating chain of the defense counsel.

Id., slip op. at 10.

While the holding was case-specific, the opinion was sharply critical of “business as usual” shifts of counsel between trial shops and defense shops in Marine Corps legal offices.

Regarding its exercise of its Article 66 powers, NMCCA explained:

[I]t is occasionally necessary to “apply needed prohylaxis” in cases, such as the one before us, where application of the ineffective assitance of counsel test is inadequate to assure vindication of an accused service member’s rights to counsel and to military due process.

. . . .

We are bound to conclude that the system of identifying and resolving professional conflicts of interests failed the appellant in this case.  We find that his guilty pleas were improvident as they were made without a clear understanding of the burden under which his counselors labored when advising him to enter these pleas as part of the overall trial strategy.

We find that the appellant futher did not knowingly or intelligently waive conflict-free counsel for the trial on the merits.  We are unable to conclude, however, for reasons discussed above, whether this legal error materially prejudiced the appellant’s substantial rights.  Ordinarily, then, we would be compelled to affirm the findings on the contested charges under Article 59.

As we noted previously, however, the system failed this appellant.  His counsel were laboring under a professional disability that he did not fully understand; it may be that his counsel themselves did not fully understand the disability.  With the passage of time, moreover, Capt Reh became more fully ensconced in the prosecution function as his remaining defense cases were resolved.  The appellant did not benefit from the sober and detached perspective of the military judge whom our system empowers to hear and resolve professional conflicts — as all counsel connected with this litigation failed to inform the trial judge of the inherent conflict in this case.  The result of a trial in which the uniformed defense counsel is simultaneously working as a prosecutor under the officer who prosecuted the appellant might not appear to the general public to be “fair”.

Employing, therefore, our “awesome, plenary, de novo power of review,” United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990), it is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved.

Id., slip op. at 11.

Senior Judge Booker wrote for a unanimous panel.

One notable aspect of this case for military appellate wonks is that the most recent appeal was argued by a uniformed attorney who is not assigned to Code 45 — Col John Baker, the Chief Defense Counsel of the Marine Corps.

[Disclosure:  I was one of the counsel on the Air Force Appellate Defense Division’s amicus brief in support of the appellant.]

4 Responses to “Important published NMCCA opinion on USMC defense counsel who was a subordinate of the prosecutor”

  1. Bill C says:

    I haven’t read the opinion, but my initial reaction is WTF? How in the world does this kind of thing happen?

  2. Phil Cave says:

    Brother Bill, ALL the time. It was a way of doing business. Question is, “now what?”

  3. stewie says:

    It was a way of doing business that a basic fracking tenet of law school 101 conflicts was ignored by all?

    I mean I could pull a 2L off the street from a Tier IV law school and they’d probably answer a hypo based on this correctly.

  4. Peanut Gallery says:

    Among those who served on this case, common sense was an uncommon virtue.