U.S. v. Brooks, 66 M.J. 221

First Principles: Constitutional Matters: Right to Counsel

1. in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; the Supreme Court has extended the right to counsel to first appeals guaranteed as a matter of right; in military jurisprudence, an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and the CAAF by appellate counsel appointed under Article 70, UCMJ
2. necessarily included in the Sixth Amendment right to counsel is the right of an accused to confer privately with his attorney
3. not all impingements on attorney-client communication constitute per se violations of the Sixth Amendment right to counsel thereby requiring reversal; per se violations are limited to structural errors and require no proof of prejudice for reversal

Military Justice Personnel: Defense Function: Right to Counsel

1. in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; the Supreme Court has extended the right to counsel to first appeals guaranteed as a matter of right; in military jurisprudence, an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and the CAAF by appellate counsel appointed under Article 70, UCMJ
2. necessarily included in the Sixth Amendment right to counsel is the right of an accused to confer privately with his attorney
3. not all impingements on attorney-client communication constitute per se violations of the Sixth Amendment right to counsel thereby requiring reversal; per se violations are limited to structural errors and require no proof of prejudice for reversal
4. appellant’s claim that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel did not fall within the category of structural error, where appellant was not deprived of all opportunities to speak with his appellate counsel and the degree of prejudice could be assessed; appellant could not articulate what he deleted from the communications with his counsel and his silence suggested that little, if anything, was chilled from his attorney-client conversations; similarly, a refusal to make certain undefined communications, especially when the appellant had ample alternative opportunities to speak freely with counsel, did not, as a general matter, constitute prejudice
5. even assuming some interference with his attorney-client relationship, appellant did not establish that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel, absent a showing of prejudice; appellant did not cite what issues he wanted to raise before the CCA but was unable to do so because of the chilling effect the actions of brig officials had on his attorney-client communications

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. there is a strong presumption that an error is not structural

Trial Stages: Appeals: Harmless / Prejudicial Error

1. structural errors involve errors in the trial mechanism so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence; they are not amenable to harmless error review and will always result in reversal if properly preserved for appeal; generally, for all other errors, an appellant must show an effect on the proceedings or prejudice to substantial rights; there is a strong presumption that an error is not structural
2. the Supreme Court has recognized two tests for structural error: (1) when a court is faced with the difficulty of assessing the effect of the error; and, (2) when harmlessness is irrelevant
3. appellant’s claim that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel did not fall within the category of structural error, where appellant was not deprived of all opportunities to speak with his appellate counsel and the degree of prejudice could be assessed; appellant could not articulate what he deleted from the communications with his counsel and his silence suggested that little, if anything, was chilled from his attorney-client conversations; similarly, a refusal to make certain undefined communications, especially when the appellant had ample alternative opportunities to speak freely with counsel, did not, as a general matter, constitute prejudice
4. even assuming some interference with his attorney-client relationship, appellant did not establish that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel, absent a showing of prejudice; appellant did not cite what issues he wanted to raise before the CCA but was unable to do so because of the chilling effect the actions of brig officials had on his attorney-client communications