U.S. v. Wiest, 59 M.J. 276

First Principles: Constitutional Matters: Right to Counsel

1. the right to counsel is fundamental to our system of justice

Military Justice Personnel: Defense Function: Right to Counsel

1. we hold the military judge abused his discretion in refusing to grant a defense-requested continuance to obtain a civilian lawyer; the military judge erred by exercising an inelastic attitude in rescheduling appellant’s trial, where such request was predicated on the judge’s negative comments about appellant’s original military counsel and appellant’s subsequent selection of a new civilian counsel
2. the right to counsel is fundamental to our system of justice; it should therefore be an unusual case, balancing all the factors involved, when the 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; indeed, we have noted that the right to civilian counsel is a most valuable right, and that therefore a continuance should be granted at least after initial requests for such counsel have been made, and certainly in a case where appellant is unsure of his appointed military representation
3. in this case, the following factors weighed in favor of the military judge granting a defense-requested continuance to obtain a civilian lawyer: surprise - the request for a continuance was based on unexpected events, where appellant was clearly surprised by the harsh criticism of his counsel by the military judge; timeliness - civilian counsel requested the continuance as soon as he was retained, six days after the court was recessed and well before the trial date; good faith of the moving party - appellant had made no prior requests for continuance, nor was there any delay or no bad faith by appellant or an attempt by appellant to vex the government; availability of witness or evidence requested - there was no showing that the witnesses would not be available at a later date; length of continuance - the timing of this request allowed sufficient time to establish a date when civilian counsel would be available to work within the schedule of the witnesses, none of whom were outside the United States; and prejudice to opponent - the government did not establish a reason for opposing appellant’s request for a continuance; given these circumstances, the military judge should have granted the continuance, and therefore abused his discretion in failing to do so
4. where a military judge denies a continuance request made for the purpose of obtaining civilian counsel, prejudice to the accused is likely

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

1. our standard of review for a trial judge’s refusal to grant a continuance request is abuse of discretion; in determining whether the judge abused his discretion, we consider the factors articulated in United States v. Miller 47 M.J. 352 (C.A.A.F. 1997): surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice