U.S. v. Cooper, 78 M.J. 283

Military Justice Personnel: Defense Function: Individual Military Counsel

1. the purpose of the IMC colloquy is to ensure the accused receives an explanation of the full panoply of his rights to counsel unfiltered by the detailed defense counsel and for the military judge and appellate authorities to satisfy themselves that the accused was represented by the counsel of his choice
2. in this case, the accused knowingly and intelligently waived his right to an IMC (1) where the military judge carefully explained to him at arraignment the nature of the right to IMC, and the accused told the military judge that he understood his rights and wanted to be represented solely by his current counsel, (2) where the military judge further asked if an IMC was ever requested, and the accused sat mute when his counsel told the military judge that no such request had been made, and (3) when a second defense counsel entered his appearance, the military judge again inquired as to whether other counsel had been requested, and when that second counsel told the military judge that no request for an IMC had been made, the accused again remained mute; the military judge’s colloquy with the accused concerning his right to an IMC was unequivocal; the military judge spoke directly to the accused and received direct answers back without the filter of the defense counsel; if the accused had wanted other counsel, he should have said so; the accused fully understood the nature of the right to an IMC and how it would have applied to him

Trial Stages: Appeals: Waiver

1. waiver can occur either by operation of law, or by the intentional relinquishment or abandonment of a known right
2. waiver is the intentional relinquishment or abandonment of a known right; whether a particular right is waivable, whether an accused must participate personally in the waiver, whether certain procedures are required for waiver, and whether the accused’s choice must be particularly informed or voluntary, all depend on the right at stake
3. the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the accused fully understands the nature of the right and how it would likely apply in general in the circumstances — even though the accused may not know the specific detailed consequences of invoking it; the accused, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the accused does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide
4. in this case, the accused knowingly and intelligently waived his right to an IMC (1) where the military judge carefully explained to him at arraignment the nature of the right to IMC, and the accused told the military judge that he understood his rights and wanted to be represented solely by his current counsel, (2) where the military judge further asked if an IMC was ever requested, and the accused sat mute when his counsel told the military judge that no such request had been made, and (3) when a second defense counsel entered his appearance, the military judge again inquired as to whether other counsel had been requested, and when that second counsel told the military judge that no request for an IMC had been made, the accused again remained mute; the military judge’s colloquy with the accused concerning his right to an IMC was unequivocal; the military judge spoke directly to the accused and received direct answers back without the filter of the defense counsel; if the accused had wanted other counsel, he should have said so; the accused fully understood the nature of the right to an IMC and how it would have applied to him