U.S. v. Marcum, 60 M.J. 198

First Principles: Constitutional Matters: Generally

1. Constitutional rights generally apply to members of the armed forces unless by their express terms, or the express language of the Constitution, they are inapplicable
2. the fundamental necessity for obedience and the consequent necessity for imposition of discipline may render permissible within the military that which would be constitutionally impermissible outside it; while servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct, this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. the application of Lawrence v. Texas, 539 U.S. 558 (2003) to consensual conduct charged under Article 125, UCMJ, must be addressed in context and not through a facial challenge; the question this Court must ask is whether Article 125 is constitutional as applied to the charged conduct; this as-applied analysis requires consideration of three questions: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? 539 U.S. at 578. Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
2. in this case, the prohibition against non-forcible sodomy in Article 125, UCMJ, did not violate due process as applied to the accused where the accused was convicted of non-forcible sodomy with a subordinate servicemember who he supervised and rated as a supervising NCO; the accused’s conduct fell outside the liberty interest in private, consensual sexual activity between adults because his conduct was with a subordinate servicemember within his chain of command who might be coerced or who was situated in a relationship where consent might not easily be refused

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

1. evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege; evidence of such a communication should not be received unless it appears that the privilege has been waived by the person or government entitled to the benefit of it or that the evidence comes from a person or source not bound by the privilege; a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is otherwise permitted
2. if an accused is absent without leave, his right to make an unsworn statement is forfeited unless prior to his absence he authorized his counsel to make a specific statement on his behalf; although defense counsel may refer to evidence presented at trial during his sentencing argument, he may not offer an unsworn statement containing material subject to the attorney-client privilege without waiver of the privilege by his client
3. even though appellant waived his right to be present during sentencing by being voluntarily absent, he did not waive his attorney-client privilege; appellant’s affidavit demonstrates that defense counsel never asked appellant for permission to use the written summary; thus, by submitting appellant’s written summary as an unsworn statement, defense counsel revealed material subject to the attorney-client privilege without receiving an appropriate waiver of this privilege from appellant
4. civilian defense counsel violated MRE 502 (Lawyer-client privilege) when he submitted a lengthy, unsworn, pretrial statement as a sentencing exhibit without appellant’s consent; this statement was prepared by appellant for his defense counsel to use in preparation for trial, and it depicted in graphic detail appellant’s sexual encounters with members of his Air Force unit; although appellant’s trial testimony recounted much of the same information, this Court concludes that appellant did not waive his right to confidentiality through his trial testimony where the tone and substance of the privileged communication in the unsworn statement was more explicit than his testimony; this Court also concludes that appellant was prejudiced during sentencing when the trial counsel repeatedly used the statement against him in his sentencing argument and defense counsel did not refer to it at all

Trial Stages: Sentence and Punishment: Unsworn Statements

1. military law is clear that the decision to make an unsworn statement is personal to the accused; during the sentencing proceedings, an accused may testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution; if an accused chooses to make an unsworn statement, he may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial; the unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both; this right of allocution by a military member convicted of a criminal offense is a fundamental precept of military justice
2. because an accused’s right to make an unsworn statement is a valuable right that has long been recognized by military custom and that has been generally considered unrestricted, this Court will not allow it to be undercut or eroded; as this Court has previously indicated, an accused elects to make an unsworn statement; thus, regardless of whether the unsworn statement is made by the accused or presented for the accused by his counsel, the right to make the unsworn statement is personal to the accused
3. if an accused is absent without leave, his right to make an unsworn statement is forfeited unless prior to his absence he authorized his counsel to make a specific statement on his behalf; although defense counsel may refer to evidence presented at trial during his sentencing argument, he may not offer an unsworn statement containing material subject to the attorney-client privilege without waiver of the privilege by his client
4. even though appellant waived his right to be present during sentencing by being voluntarily absent, he did not waive his attorney-client privilege; appellant’s affidavit demonstrates that defense counsel never asked appellant for permission to use the written summary; thus, by submitting appellant’s written summary as an unsworn statement, defense counsel revealed material subject to the attorney-client privilege without receiving an appropriate waiver of this privilege from appellant
5. civilian defense counsel violated MRE 502 (Lawyer-client privilege) when he submitted a lengthy, unsworn, pretrial statement as a sentencing exhibit without appellant’s consent; this statement was prepared by appellant for his defense counsel to use in preparation for trial, and it depicted in graphic detail appellant’s sexual encounters with members of his Air Force unit; although appellant’s trial testimony recounted much of the same information, this Court concludes that appellant did not waive his right to confidentiality through his trial testimony where the tone and substance of the privileged communication in the unsworn statement was more explicit than his testimony; this Court also concludes that appellant was prejudiced during sentencing when the trial counsel repeatedly used the statement against him in his sentencing argument and defense counsel did not refer to it at all

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of an accused

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

1. a constitutional question is reviewed de novo
2. the application of Lawrence v. Texas, 539 U.S. 558 (2003) to consensual conduct charged under Article 125, UCMJ, must be addressed in context and not through a facial challenge; the question this Court must ask is whether Article 125 is constitutional as applied to the charged conduct; this as-applied analysis requires consideration of three questions: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? 539 U.S. at 578. Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
3. whether an appellant suffers prejudicial error when his trial defense counsel reveals a privileged communication during the sentencing phase of trial is a mixed question of law and fact reviewed de novo