U.S. v. Pinson, 56 M.J. 489

Military Justice Personnel: Defense Function: Right to Counsel

1. servicemembers have a right to counsel, including the right to a lawyer appointed free of charge, at the pretrial stage, trial stage, post-trial stage, and the appellate stage, and a concomitant right to confidential communications between the attorney and client

Core Criminal Law Subjects: Evidence: Privileges › Attorney-client

1. servicemembers have a right to counsel, including the right to a lawyer appointed free of charge, at the pretrial stage, trial stage, post-trial stage, and the appellate stage, and a concomitant right to confidential communications between the attorney and client
2. any exception to the right to confidential communications between the attorney and client must ensure that there is no chilling effect on defendants freely speaking with their military lawyers
3. interference with the attorney-client privilege does not per se require the drastic remedy of reversal
4. interference with the attorney-client privilege may warrant reversal where the invasion impacted on the attorney’s performance or resulted in the disclosure of privileged information at the time of trial; factors to consider include: (1) whether an informant testified at the accused’s trial as to the conversation between the accused and his attorney; (2) whether the prosecution’s evidence originated in these conversations; (3) whether the overheard conversations was used in any other way to the substantial detriment of the accused; or (4) whether the prosecution learned from the informant the details of the conversations about trial preparations
5. The remedy for an unjustified invasion into the attorney-client relationship in the criminal proceeding is limited to denying the prosecution the fruits of its transgression
6. where agents seized alleged attorney-client privileged documents during a lawful search of appellant’s quarters, appellant failed to carry his burden to show intentional or outrageous government misconduct, such as having no basis for a search, or that he was prejudiced by the disclosure of information
7. reversal is not required for alleged unjustified invasion into the attorney-client relationship where: (1) there was a legitimate search of appellant’s quarters; (2) there was no direct interference with the attorney-client relationship; (3) no direct evidence was used at trial; (4) even though two privileged documents were used to analyze appellant’s handwriting, an individual has no expectation of privacy in his handwriting; and (5) the government’s case was based on independent evidence

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. even though two allegedly privileged documents were used to analyze appellant’s handwriting, an individual has no expectation of privacy in his handwriting

Trial Stages: Appeals: Remedies › Generally

1. interference with the attorney-client privilege does not per se require the drastic remedy of reversal
2. interference with the attorney-client privilege may warrant reversal where the invasion impacted on the attorney’s performance or resulted in the disclosure of privileged information at the time of trial; factors to consider include: (1) whether an informant testified at the accused’s trial as to the conversation between the accused and his attorney; (2) whether the prosecution’s evidence originated in these conversations; (3) whether the overheard conversations were used in any other way to the substantial detriment of the accused; or (4) whether the prosecution learned from the informant the details of the conversations about trial preparations
3. Even where there is an unjustified invasion into the attorney-client relationship, such as where agents meet with a defendant who is known to be represented by an attorney, without defense counsel’s knowledge or permission, remedial action must be tailored to the injury suffered; where there is no prejudice of any kind, either transitory or permanent, to the ability of counsel to provide adequate representation in these criminal proceedings, there was no justification for such drastic relief as a dismissal with prejudice
4. The remedy for an unjustified invasion into the attorney-client relationship in the criminal proceeding is limited to denying the prosecution the fruits of its transgression
5. reversal is not required for alleged unjustified invasion into the attorney-client relationship where: (1) there was a legitimate search of appellant’s quarters; (2) there was no direct interference with the attorney-client relationship; (3) no direct evidence was used at trial; (4) even though two privileged documents were used to analyze appellant’s handwriting, an individual has no expectation of privacy in his handwriting; and (5) the government’s case was based on independent evidence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a military judge’s conclusion as to whether a civilian investigation was “conducted, instigated, or participated in,” Mil.R.Evid. 305(h)(2), by military authorities should be reviewed de novo or under a “clearly erroneous” standard is an open question