U.S. v. Lee, 66 M.J. 387

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; one element within this Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to choose who will represent him; further, counsel provided to or retained by the accused must provide reasonably effective assistance; third, where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest; finally, it follows that where assistance of counsel has been denied entirely, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary
2. an accused may waive his right to conflict-free counsel; however, waivers must be voluntary, and they must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences; courts will indulge every reasonable presumption against the waiver of this right

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; one element within this Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to choose who will represent him; further, counsel provided to or retained by the accused must provide reasonably effective assistance; third, where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest; finally, it follows that where assistance of counsel has been denied entirely, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary
2. an accused may waive his right to conflict-free counsel; however, waivers must be voluntary, and they must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences; courts will indulge every reasonable presumption against the waiver of this right

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. appellant’s conflict-of-interest allegations on appeal that his detailed defense counsel had been working as a prosecutor on another serious case while simultaneously representing him, and that in this other case, his detailed counsel was working for the same trial counsel who prosecuted his case, required remand for a factfinding hearing pursuant to United States v. DuBay, 17 CMA 147, 37 CMR 411 (1967), for further findings and conclusions of law.