Why an Average Military Defense Lawyer is Not Good Enough

You need to have someone who knows what they’re doing. Just having some run-of-the-mill military defense attorney on retainer is not going to benefit you, just like investigators. They see you as a sitting duck. If you don’t have an attorney, they also see attorneys with experience as easy targets.
They’re easy to manipulate, and they know who pleads all their clients guilty, who has experience who doesn’t have experience, because the first thing they do, when they get a phone call, they look the attorney up, when they looked attorney up, and they see this guy’s been out of the army for three months. And he’s never defended a case. Or the guy has a record of pleading everybody guilty. Or the attorney you hired is just one of the guys you know. So he hangs out at the jag office. He works with the jag office pleading people guilty left and right.

It is not known for fighting cases. They know that they know the attorney’s reputation. They research their opponents, you’re an accused or a suspect. The investigators see you as prey, and they see themselves as predators who will hunt you down. You need to have someone on your side to advise you and help you stay out of their crosshairs is. If not, it’s like shooting fish in a barrel. You need to put up the most aggressive defense possible and bring the most aggressive, experienced attorneys to your team because you’re not facing easy opponents.

These investigators, especially if it’s sexual assault, have been doing this for years. The prosecutors are much better trained now than they were three, four, or five years ago. They’ve hired a lot of specialized prosecutors. So this isn’t like ten years ago where the average prosecutor had done three or four cases. Some of these guys have done 30 4050 felony trials in front of a jury, and they’re coming after you.

When You Need a Civilian military defense Counsel

COUNSEL INVOLVED IN A MILITARY COURTS-MARTIAL

A. QUALIFICATIONS OF COUNSEL.
1. GCM. Article 27(b), UCMJ. “Trial counsel . . . detailed for a general court-martial – a. must be a judge advocate who is a graduate of an accredited law school or is a
member of the bar of a federal court or the highest court of a State . . . and must be certified as competent to perform such duties by The Judge Advocate General of the armed force of which he is a member.”
SPCM & GCM. RCM 502(d). Defense counsel must be Article 27(b) certified.
Under RCM 502(d)(2), assistant trial counsel and defense counsel need only commissioned officers.
4. Summary Court-Martial. Middendorf v. Henry, 425 U.S. 25 (1976). The Sixth Amendment right to counsel does not extend to SCM.
B. DISQUALIFICATION OF COUNSEL.
1. Due to a defect in the appointment or lack of qualifications.
a. Wright v. In the United States, 2 M.J. 9 (CMA 1976). Defects in appointment or qualifications of trial counsel are matters of procedure to be tested for prejudice and have no jurisdictional significance.
b. In the United States v. Harness, 44 MJ 593 (N-M. Ct. Crim. App. 1996). The presence of defense counsel who was neither graduate of accredited law school nor properly admitted to practice did not constitute ineffective assistance of counsel under the Sixth Amendment. Performance of defense counsel measured by combined efforts of the entire defense team.
c. Inactive status. In the United States v. Steele, 53 MJ 274 (CAAF 2000).
Inactive status of civilian attorney in states where he is licensed to practice does not include bar practice before military courts-martial.
d. Not sworn. In the United States v. Roach, No. S31143, 2007 CCA LEXIS 402 (A.F. Ct. Crim. App. Sep. 13, 2007) (unpublished). The assistant trial counsel in the case had not been sworn under Article 42(a), UCMJ, before serving on the court-martial. The defect was not caught until after trial. The lack of qualified counsel is not a jurisdictional defect requiring reversal, so the error was tested for prejudice. The defense did not object or raise the issue in clemency, and the accused’s pleas were voluntary and provident. Therefore there was no prejudice.
2. Accuser. In the United States v. Reist, 50 MJ 108 (CAAF 1999). Assistant T.C. signed the charge sheet and was present in court, identified as “accuser” on the record, and argued at sentencing that the accused’s conduct was “cowardly criminal conduct of a sexual pervert.” While ATC was accuser under Article 1(9), UCMJ, and disqualified to act as ATC (RCM 504(d)(4)(A)), the court held defense waived the issue and found no plain error.
3. Due to prior duty on the opposite side. In the United States v. Smith, 26 M.J. 152 (CMA 1988) (trial counsel who had been a member of the Trial Defense Service and acted as a sounding board for part of the defense case was not disqualified); In the United States v. Sparks, 29 M.J. 52 (CMA 1989) (despite Article 27 violation, accused cannot complain when, “after full disclosure and inquiry by the military judge,” he gives informed consent to representation by defense counsel who previously acted for prosecution).
4. Due to potential disqualification as a witness. In the United States v. Baca, 27 MJ 110 (CMA 1988). Although the accused is not fully and entitled to counsel of choice, he can retain an established relationship with counsel absent demonstrated good cause.
5. Due to duty as an investigating officer. In the United States v. Strother, 60 MJ 476 (CAAF 2005). Trial counsel had served as the command SJA and, in that capacity, conducted interviews involving the accused’s misconduct and discussed various aspects of the case, including procedural matters, substantive issues, and investigative options, with the officer ordered to conduct the preliminary inquiry. During this preliminary inquiry, a new SJA arrived, and the trial assumed other legal duties. Upon completion of the preliminary inquiry, charges were preferred and an Article 32 investigation directed. At this time, trial counsel was detailed to the case. At trial and on appeal, the defense asserted that the trial counsel was disqualified as a matter of due process and because under Article 27(a)(2), he acted as an “investigating officer.” Article 27(a)(2) states that no person who has acted as an investigating officer may later act as a trial counsel. While “investigating officer” is not defined in Article 27, the CAAF, after a thorough historical discussion on the “investigating officer” disqualification, interpreted the language to apply to an Article 32 investigating officer. The CAAF then held trial counsel’s involvement did not interfere with the accused’s due process rights and that the accused did not “demonstrate that the [T.C.’s] activities so departed from the normal role of prosecutor as to make him a de facto Article 32 ‘investigating officer.’”
6. Due to incompetence. In the United States v. Galinato, 28 MJ 1049 (NMCMR 1989). The military judge had the discretion to remove the accused’s counsel of choice and to appoint different counsel, where the counsel of choice had effectively withdrawn from proceedings.
7. Due to conflict of interest.
a. In the United States v. Humpherys, 57 M.J. 83 (CAAF 2002). Assistant trial counsel (ATC) previously represented the accused in legal assistance matter (child support issue). The defense moved to disqualify ATC at trial, alleging that ATC used information from this prior representation while interviewing the accused’s wife (a potential defense sentencing witness). The military judge denied a motion to disqualify ATC because: (1) the charges did not relate to the period of the prior representation; (2) the subject matter of prior representation had no substantial relationship to any matter at issue in the court-martial, and (3) military judge accepted ATC’s representation that she did not recall the specifics of the prior representation. When the defense called the wife as a witness, the ATC conducted a cross-examination. In affirming, the court held the accused failed to demonstrate either (1) that the subject of the prior representation was substantially related to the pending court-martial charges (adultery, sodomy, violation of lawful general regulation, and false official statements); or (2) that specific confidential information gained by ATC during the prior representation might have been used to the disadvantage of the accused in the present case. The accused could have requested the military judge review the legal assistance file, which still existed, or the accused could have testified in a closed hearing with a sealed record of the matters of prior representation. Accused’s mere conclusory assertions were not sufficient.
b. In the United States v. Cain, 59 MJ 285 (CAAF 2004). Accused alleged that his lead trial defense counsel had a coerced, homosexual relationship with him that created an actual conflict of interest and deprived him of effective assistance of counsel. At the DuBay hearing, the military judge found the relationship was consensual. The accused desired continued representation by his counsel, despite advice from two civilian lawyers to fire him. ACCA held the accused did not meet the two-pronged test to establish IAC due to an actual conflict of interest in a guilty plea: (1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea. The CAAF reversed, finding that the “volatile mixture of sex and crime in the context of the military’s treatment of fraternization and sodomy as criminal offenses” resulted in a “uniquely proscribed relationship” that was “inherently prejudicial and created a per se conflict of interest in counsel’s representation of the Appellant.” Accordingly, the conflict resulted in ineffective assistance of counsel under the Sixth Amendment. Findings and sentences set aside.