Accused’s Rights to counsel

1. Pro se representation. RCM 506(d).

a. United States v. Mix, 35 M.J. 283 (C.M.A. 1992). Before approving
accused’s request to proceed pro se, RCM 506(d) requires a finding that the accused understands: (1) the disadvantages of self representation and; (2) if the waiver of counsel was voluntary and knowing. Opinion includes an appendix of suggested questions.

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b. Cf. Iowa v. Tovar, 541 U.S. 77 (2004). Prior to proceeding pro se at a guilty plea, the Sixth Amendment is satisfied if the trial court “informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.” Warnings that: “(1) advise the defendant that waving the assistance
of counsel in deciding whether to plead guilty [entails] the risk that a viable
defense will be overlooked; and (2) admonish[ing] the defendant that by waiving
his right to an attorney he will lose the opportunity to obtain an independent
opinion on whether, under the facts and applicable law, it is wise to plead guilty”
are not required by the Sixth Amendment.

c. Godinez v. Moran, 509 U.S. 389 (1993). Supreme Court says the standard of competence to proceed pro se is no different than that required for an accused to stand trial. Military appellate courts appear to imply a higher level of competence for accused to waive counsel. See also United States v. Freeman, 28 M.J. 789 (N.M.C.M.R. 1989) (“[H]igher standard of competence must exist for an accused to waive counsel and conduct his own defense than would be required to merely assist in his own defense”). United States v. Streater, 32 M.J. 337 (C.M.A. 1991) (accused was competent to “represent himself and to actually defend himself”).

2. Individual military counsel. RCM 506(b); Article 38(b), UCMJ; AR 27-10, para 5-
7; United States vSpriggs, 52 M.J. 235 (C.A.A.F. 2000). If an individual military
counsel request has been denied and the defense claims improper severance of attorney-
client relationship, the defense bears the burden of demonstrating that the accused had a
viable ongoing attorney-client relationship regarding the substance of the charges.
Defense must demonstrate both an understanding as to the nature of future representation
and active engagement by the attorney in preparation of the case. If the defense makes
such showing, the burden shifts to the Government to demonstrate good cause for
severance. If the defense cannot make such showing, the burden shifts to the
Government to demonstrate that the judge advocate was not reasonably available under
applicable criteria. If there was a prior attorney-client relationship that is no longer
viable at the time of the request, the Government is not required to demonstrate good
cause, but must demonstrate that the other criteria warrant disregarding the relationship
under the circumstances. Absent Government misconduct, the routine separation of a
judge advocate from active duty normally terminates any attorney-client relationship
established on the basis of the attorney’s military status, except when: (1) the attorney
agrees to represent the client in his or her civilian capacity; or (2) the attorney enters the
reserves and is ordered to represent the client to the extent permitted by applicable law
based upon a determination by the appropriate official of reasonable availability.

3. Civilian Counsel.

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a. Delay to obtain civilian counsel.

(1) United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004). Military judge
abused his discretion in denying defense request for delay to obtain
civilian counsel. “It should . . . be an unusual case, balancing all the
factors involved, when a judge denies an initial and timely request for a
continuance in order to obtain civilian counsel, particularly after the
judge has criticized appointed military counsel.” Applying the Miller
factors, below, the court held that the judge erred and set aside findings
and sentence.

(2) United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). Military judge
abused his discretion by denying request for delay in post-trial hearing in
order for accused to obtain civilian counsel. While the right to retain
civilian counsel is not absolute, “an unreasoning and arbitrary insistence
upon expeditiousness in the face of a justifiable request for delay violates
the right to the assistance of counsel.” Factors used to determine
whether military judge abused his discretion include: surprise, timeliness
of the request, other continuance requests, good faith of moving party,
and prior notice.

b. Delay to obtain expert witnessUnited States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999). In 1994, accused was tried by GCM for sexually assaulting two teenaged brothers, and he was acquitted. The key to the defense case in the 1994 court-martial was a psychiatric expert. In 1995, at another installation, accused was charged with offenses relating to two other adolescent boys. Themilitary judge ruled the two boys from the 1994 could testify under MRE 404(b).The civilian attorney from the 1994 court joined the defense team for the 1995 case in October, then requested a delay to permit attendance of the psychiatric expert used in the 1994 court. The military judge denied this request, and the CAAF held that this was error and that the defense request was not unreasonable. Findings and sentence set aside.

4. Foreign counsel. RCM 502(d)(3)(b); Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1980).
Military judge determines if individual foreign civilian counsel is qualified.

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