U.S. v. Wiechmann, 67 M.J. 456

First Principles: Constitutional Matters: Right to Counsel

1. when a Sixth Amendment claim involves a governmental act or omission affecting the right of an accused to the assistance of counsel, an appellate court considers whether the infringement involves a structural error -- an error so serious that no proof of prejudice is required -- or whether the error must be tested for prejudice; structural error exists when a court is faced with the difficulty of assessing the effect of the error or the error is so fundamental that harmlessness is irrelevant; 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; there is a strong presumption that an error is not structural

Military Justice Personnel: Defense Function: Right to Counsel

1. the accused has the right to be represented by counsel during an investigation under Article 32, UCMJ, and before a general or special court-martial; in the military justice system, the right to counsel includes the right to counsel detailed under Article 27, UCMJ; the right to the services of detailed counsel is substantial, and extends to both the pretrial and the trial proceedings
2. RCM 705, the MCM rule dealing with pretrial agreements, underscores the vital role of counsel at the pretrial stage of the proceedings by providing that government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel; the rule further provides that a pretrial agreement shall be signed by the accused and defense counsel, if any

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. under Article 27(a)(1), UCMJ, the secretaries of the military departments prescribe regulations governing the detail of military counsel; although the accused does not have the right to more than one detailed counsel, the person authorized by regulations prescribed under Article 27 to detail counsel, in his sole discretion may detail additional military counsel as assistant defense counsel
2. the authority to assign detailed defense counsel to a particular case is vested in the official designated under departmental regulations, and the accused is not entitled to detailed counsel of choice under Article 27(a); although the accused does not have the right to detailed counsel of choice, once counsel has been detailed under Article 27(a) and an attorney-client relationship has been established, the convening authority may not undermine that relationship; the responsibility for any changes in the assignment of detailed counsel is vested in the authority competent to detail such counsel under departmental regulations, not the convening authority, and may be exercised only for good cause shown on the record or under the other limited circumstances provided in RCM 505(d)(2)(B)
3. a convening authority may not interfere with or impede an attorney-client relationship established between an accused and detailed defense counsel
4. a the convening authority exercises significant pretrial responsibilities in the military’s criminal justice system; the responsibility for detailing defense counsel, however, is not one of the duties assigned to the convening authority by law; although the UCMJ, as originally enacted, authorized the convening authority to detail counsel, Congress amended the statute in 1983 to provide that the responsibility for detailing counsel would be exercised by persons authorized to do so under departmental regulations; the regulations at issue in the present case vested the responsibility for detailing counsel in various department-level officers, not in the convening authority
5. the convening authority erred by declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations; in so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of his counsel’s initial detail, and these actions violated appellant’s rights under Article 27, UCMJ
6. the convening authority’s action in declining to recognize appellant’s detailed counsel during the pretrial proceedings and initial pretrial agreements negotiations burdened counsel’s representation of appellant in several respects: (1) the Article 32 proceeding was conducted without a full opportunity for counsel to prepare and participate; (2) counsel was excluded from pretrial disposition negotiations that the government conducted with a second, but less experienced defense counsel; (3) counsel was unable to represent appellant in pretrial procedural matters, such as in a scheduling conference or by requesting a continuance; under these circumstances, the government’s actions infringed appellant’s right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge

Military Justice Personnel: Military Judge: Generally

1. because a military judge is not appointed to conduct proceedings until charges are referred to a court-martial, the military justice system does not have standing courts at the trial level to address legal issues at the pre-referral stage; the convening authority exercises responsibility for pretrial matters that would otherwise be litigated before a judge in civilian proceedings, including issues involving the conduct of depositions, issuance of protective orders, availability of government-funded experts, mental responsibility proceedings, and questions concerning the validity of charges

Military Justice Personnel: Convening Authority: Generally

1. although the accused does not have the right to detailed counsel of choice, once counsel has been detailed under Article 27(a) and an attorney-client relationship has been established, the convening authority may not undermine that relationship; the responsibility for any changes in the assignment of detailed counsel is vested in the authority competent to detail such counsel under departmental regulations, not the convening authority, and may be exercised only for good cause shown on the record or under the other limited circumstances provided in RCM 505(d)(2)(B)
2. because a military judge is not appointed to conduct proceedings until charges are referred to a court-martial, the military justice system does not have standing courts at the trial level to address legal issues at the pre-referral stage; the convening authority exercises responsibility for pretrial matters that would otherwise be litigated before a judge in civilian proceedings, including issues involving the conduct of depositions, issuance of protective orders, availability of government-funded experts, mental responsibility proceedings, and questions concerning the validity of charges
3. pretrial agreements implicate distinctive responsibilities of the convening authority with respect to court-martial proceedings; in the military justice system, responsibility for the function of determining sentencing is shared by the court-martial and the convening authority; as an incident of the responsibility for sentencing, the convening authority may enter into a pretrial agreement that imposes a legal limitation on the scope of the sentence
4. a convening authority may not interfere with or impede an attorney-client relationship established between an accused and detailed defense counsel
5. a the convening authority exercises significant pretrial responsibilities in the military’s criminal justice system; the responsibility for detailing defense counsel, however, is not one of the duties assigned to the convening authority by law; although the UCMJ, as originally enacted, authorized the convening authority to detail counsel, Congress amended the statute in 1983 to provide that the responsibility for detailing counsel would be exercised by persons authorized to do so under departmental regulations; the regulations at issue in the present case vested the responsibility for detailing counsel in various department-level officers, not in the convening authority
6. the convening authority erred by declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations; in so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of his counsel’s initial detail, and these actions violated appellant’s rights under Article 27, UCMJ
7. the convening authority’s action in declining to recognize appellant’s detailed counsel during the pretrial proceedings and initial pretrial agreements negotiations burdened counsel’s representation of appellant in several respects: (1) the Article 32 proceeding was conducted without a full opportunity for counsel to prepare and participate; (2) counsel was excluded from pretrial disposition negotiations that the government conducted with a second, but less experienced defense counsel; (3) counsel was unable to represent appellant in pretrial procedural matters, such as in a scheduling conference or by requesting a continuance; under these circumstances, the government’s actions infringed appellant’s right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge
8. the convening authority’s error in declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings did not amount to structural error, where appellant had the services of a second, recognized, and qualified detailed counsel throughout the proceedings, where appellant had the benefit of his previously unrecognized counsel’s unrestricted assistance during subsequent pretrial agreement negotiations, completion of the agreement, entry of pleas, and other trial and post-trial proceedings, and where appellant’s plea agreement, completed with the assistance of that counsel, expressly waived any defects in the Article 32 proceeding

Trial Stages: Merits: Pretrial Agreements

1. pretrial agreements implicate distinctive responsibilities of the convening authority with respect to court-martial proceedings; in the military justice system, responsibility for the function of determining sentencing is shared by the court-martial and the convening authority; as an incident of the responsibility for sentencing, the convening authority may enter into a pretrial agreement that imposes a legal limitation on the scope of the sentence
2. RCM 705, the MCM rule dealing with pretrial agreements, underscores the vital role of counsel at the pretrial stage of the proceedings by providing that government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel; the rule further provides that a pretrial agreement shall be signed by the accused and defense counsel, if any

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when a Sixth Amendment claim involves a governmental act or omission affecting the right of an accused to the assistance of counsel, an appellate court considers whether the infringement involves a structural error -- an error so serious that no proof of prejudice is required -- or whether the error must be tested for prejudice; structural error exists when a court is faced with the difficulty of assessing the effect of the error or the error is so fundamental that harmlessness is irrelevant; 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; there is a strong presumption that an error is not structural
2. even assuming that the convening authority’s error in declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings violated appellant’s Sixth Amendment rights, it was harmless beyond a reasonable doubt, where the unrecognized counsel represented appellant fully as lead defense counsel throughout the trial and post-trial proceedings, where appellant, with the assistance of that counsel, entered into a pretrial agreement that expressly waived any error in the Article 32 investigation, where that counsel had the opportunity to engage in negotiations with the convening authority regarding a defense request for nonjudicial disposition as well as the terms of the pretrial agreement, where appellant claimed no measurable prejudice from the inability of that counsel to participate in an initial pretrial scheduling conference, and where appellant has not claimed that his plea was involuntary or that the providence inquiry was otherwise deficient

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

1. when a Sixth Amendment claim involves a governmental act or omission affecting the right of an accused to the assistance of counsel, an appellate court considers whether the infringement involves a structural error -- an error so serious that no proof of prejudice is required -- or whether the error must be tested for prejudice; structural error exists when a court is faced with the difficulty of assessing the effect of the error or the error is so fundamental that harmlessness is irrelevant; 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; there is a strong presumption that an error is not structural