U.S. v. Baker, 58 M.J. 380

Military Justice Personnel: Defense Function: Responsibilities

1. the initial actions taken by a competent defense counsel in preparing diligently for trial are relatively non-controversial; at the outset, the attorney will discuss with the client the relative benefits of testifying versus relying on the privilege to remain silent; in the course of such a discussion, the attorney will ascertain from the client the nature of any proposed testimony; the attorney will then conduct a reasonable investigation to identify potential areas of vulnerability to cross-examination or rebuttal; in the course of such trial preparation, the attorney may identify conflicts between the proposed testimony and other evidence, including prior statements to the attorney by the client; such conflicts do not necessarily mean that the proposed testimony is false; it may well be that the client was reluctant to be candid with the attorney until a degree of comfort was established in the relationship; under the ethical obligations of competence, diligence, fairness, and candor, the attorney cannot close his or her eyes to the possibility that the proposed testimony is false; the attorney must conduct an appropriate investigation to ascertain whether the proposed testimony is false; even if the client asserts that he or she wants to present false testimony to the court, a diligent attorney will recognize that such a statement may reflect the pressures of a looming trial, and will not accept it at face value without making a reasonable inquiry
2. when an attorney perceives that a client’s prospective testimony may be false, the attorney will face conflicting pressures in terms of the client’s constitutional right to the effective assistance of counsel, ethical duties toward the client, ethical duties toward the court, and applicable statutory and regulatory procedures; despite substantial attention to this problem by scholars, practitioners, and judges, there is considerable disagreement as to the steps that should be taken by counsel and judges to reconcile these competing interests; the Supreme Court, in its leading decision on these issues, declined to provide detailed guidance with respect to the weight to be given to recognized canons of ethics, the standards established in statutes or professional codes, and the Sixth Amendment; although we have touched upon these matters in earlier cases, we have not issued definitive holdings regarding the propriety of any particular approach
3. the standard an attorney should apply in determining whether a client's proposed testimony is false for purposes of triggering any ethical obligations is that of "a firm factual basis"; that standard is sufficient to ensure that counsel has conducted an adequate inquiry prior to initiating any action under the ethical standards
4. if a client persists in a desire to provide what the attorney has determined to be false testimony, there are three alternatives available to counsel: (1) the first view is that the attorney should not have any involvement with a client who intends to taint the proceeding through the presentation of false testimony; under this view, if the client persists in the desire to testify falsely, the attorney should ask the court for permission to withdraw from the representation; (2) the second view is that withdrawal is too disruptive and simply foists the issue on the next attorney; therefore, the relationship should not be severed completely, but the client should not have the assistance of counsel during the presentation of testimony; under this approach, the attorney provides non-specific notice to the court that the client will testify in free narrative form without the benefit of questions from defense counsel, and counsel does not refer to the testimony during closing argument; and (3) the third view is that the free narrative approach violates attorney-client confidentiality because the unusual format of the testimony signals to the judge or jury that the client is not telling the truth; this view focuses on the confidentiality of the attorney-client relationship, the client’s right to assistance of counsel, and the client’s right to testify; under this approach, if the client persists in the desire to testify, the attorney should provide unqualified assistance, treat the matter in the same fashion as any other evidence, and give no indication of concerns about perjury to the court or opposing counsel
5. the first and third options available to an attorney faced with a client who may commit perjury at trial – withdrawal of counsel and disregard of the perjury - each attempt to address the issue by giving primacy to one set of interests; the second approach – testimony without the assistance of counsel – attempts to balance the competing interests; given the conflicting interests at stake, none of the alternatives is completely satisfactory, but the free narrative approach offers a reasonable opportunity to achieve a fair balance
6. we have identified a number of steps that counsel and military judges may consider taking to reduce the potential for confusion and error in situations involving potential client perjury; at the outset, the defense counsel should conduct an appropriate investigation into the validity of evidence that is likely to be offered at trial, including prospective testimony by the accused; if such an investigation provides the attorney with a firm factual basis for determining that the prospective testimony is false, the attorney should have a discussion with the client that reviews the facts, the basis for the attorney’s concern, and the potential consequences for the accused if the client persists in a desire to provide the testimony; the advice should cover consequences in terms of the obligation to tell the truth, pertinent criminal sanctions, tactical considerations at trial, and the effect of testimony in a free narrative form; if the accused persists, the attorney should request an on-the-record ex parte proceeding before the military judge, which would be attended by the accused; a motion to withdraw should not be made or granted in any case unless the circumstances as a whole have produced such an irreconcilable conflict between counsel and the accused that effective representation no longer is possible; at the ex parte proceeding, the attorney should advise the military judge that the client wishes to testify and that the client will testify in free narrative form; the military judge should not inquire into the reasons, but should: (1) remind the attorney of the obligation to conduct an appropriate investigation that demonstrates the basis for the concern; (2) ensure that the accused understands the consequences of testifying in free narrative form; (3) ask the attorney and the client to have a further conversation during a recess prior to making a final decision as to how to proceed; and (4) direct the attorney to prepare a memorandum describing the attorney’s investigation, factual concerns, and advice provided to the accused; if, after such a recess, the accused decides to proceed with the testimony, the attorney and the accused should notify the military judge of that decision in an ex parte proceeding; prior to the conclusion of the trial, the military judge should ensure that defense counsel submits a copy of the memorandum under seal; the document should be attached to the record as a sealed exhibit and should remain sealed, except to the extent release is directed during appellate review upon an appropriate showing and subject to appropriate protective orders; because the actual circumstances – including service regulations and potentially applicable state bar ethical rules - may require counsel to consider variations in the suggested standards for assessing whether the evidence is false and related procedures for addressing the matter at trial, we emphasize that these are available measures that may prove useful at trial, and that we are not establishing mandatory requirements at this time; in the course of adapting these measures to the needs of a particular case, the military judge and counsel for the parties should keep in mind their respective responsibilities with regard to the truth-seeking purposes of a trial, consistent with applicable constitutional, statutory, and ethical considerations

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. when circumstances indicate that an accused may commit perjury at trial, counsel for the accused is placed at the intersection of competing and sometimes conflicting interests; in addition to the constitutional right to the effective assistance of counsel, these interests include: (1) the constitutional right of an accused to testify in his or her own defense; (2) the ethical obligation of defense counsel to provide legal representation that is both competent and diligent; (3) the general prohibition against disclosure of communications between a client and an attorney, subject to limited exceptions; (4) the criminal prohibitions concerning false testimony on a material matter; (5) the ethical duty of an attorney to not offer or assist in offering material evidence that an attorney knows to be false; (6) the ethical duty of an attorney who knows that a client is contemplating a criminal act to counsel the client against doing so; (7) the related ethical duty of an attorney to withdraw if a client persists in a fraudulent or criminal course of conduct; and (8) the rules governing impeachment and rebuttal
2. although we may speculate as to the reasons which led defense counsel to request withdrawal – a request that ultimately resulted in appellant testifying without the benefit of counsel - the record in the present case provides no direct evidence of the circumstances that led counsel to make such a request; with the record in this posture, we cannot determine whether the actions of trial defense counsel resulted in a denial of appellant’s Sixth Amendment right to the effective assistance of counsel; accordingly, we remand the case with direction for a hearing pursuant to DuBay, before a military judge other than the judge who presided at appellant’s court-martial, to address the following questions: (1) what information, if any, led defense counsel to perceive that testimony by appellant would present an ethical problem; (2) what inquiry, if any, did defense counsel make; (3) what facts were revealed by the inquiry; (4) what standard, if any, did defense counsel apply in evaluating those facts; (5) what determination, if any, did defense counsel make with respect to prospective testimony by appellant in light of those facts; (6) after making any such determination, what information and advice, if any, did counsel provide to appellant; (7) what response, if any, did appellant make; and, (8) what information was disclosed by the two defense counsel during their off-the-record conversation with the military judge