U.S. v. Cain, 59 M.J. 285

First Principles: Constitutional Matters: Right to Counsel

1. members of the armed forces facing criminal charges, like their civilian counterparts, have a constitutional right to effective assistance of counsel

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

1. an attorney's violation of the canons of legal ethics does not necessarily render the attorney's assistance ineffective; most cases will require specifically tailored analyses in which the appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland
2. defense counsel’s conduct with his client (soliciting and committing homosexual acts with a military subordinate) placed both the attorney and client at the risk of criminal prosecution for violating the very article of the UCMJ, Article 125, that was the subject of the present case; by his actions, counsel placed himself and his client in a position where testimony by the client entailed significant risks; any exploration into appellant’s conduct would have raised the possibility that the prosecution would have endeavored through cross-examination or rebuttal to elicit evidence of similar sexual misconduct; this would have created the potential for exposing counsel’s sexual misconduct with appellant; in those circumstances, defense counsel faced a conflict between his personal interests and his responsibility to give thoughtful, dispassionate consideration and advice concerning the range of options facing the defense; when confronted about the sexual misconduct with his client, the attorney took his own life in only a matter of hours; the uniquely proscribed relationship before us was inherently prejudicial and created a per se conflict of interest in counsel’s representation of the appellant
3. the facts of this case are distinguishable from the limited, consensual relationship between a civilian counsel and his client that we considered in Babbitt, where we declined to find such a per se conflict; here, we confront a course of conduct involving an attorney’s abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney’s client was on trial; all of this is left unexplained due to the attorney’s untimely death; the conflict created by this conduct was real, not simply possible, and so threatening as to justify a presumption that the adequacy of representation was affected
4. waiver of representational conflict of interest requires the type of informed discussion of the specific pitfalls of the representation that would demonstrate a knowing, intelligent waiver of the right to effective assistance of counsel

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

1. our Court reviews claims of ineffective assistance of counsel de novo