U.S. v. Watkins, 80 M.J. 253

First Principles: Constitutional Matters: Right to Counsel

1. the Sixth Amendment guarantees the right to counsel, and within that, the right to choice of counsel for those who hire their own counsel; it commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he believes to be best
2. despite adequate representation by counsel, if it is not the accused’s counsel of choice and if he is erroneously prevented from being represented by the lawyer he wants, then the Sixth Amendment right has been violated
3. the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two

Military Justice Personnel: Defense Function: Right to Counsel

1. ((the Sixth Amendment guarantees the right to counsel, and within that, the right to choice of counsel for those who hire their own counsel; it commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he believes to be best)
2. despite adequate representation by counsel, if it is not the accused’s counsel of choice and if he is erroneously prevented from being represented by the lawyer he wants, then the Sixth Amendment right has been violated
3. the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two
4. Congress has provided members of the armed forces facing trial by general or special court-martial with counsel rights broader than those available to their civilian counterparts; an accused has the right to detailed military counsel, military counsel of choice if reasonably available and, at his own expense, civilian counsel of choice; appellant’s right to civilian counsel of choice is further protected under RCM 506(c) which states that defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown; nevertheless, this right to civilian counsel of choice is not absolute and must be balanced against society’s interest in the efficient and expeditious administration of justice; a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. Congress has provided members of the armed forces facing trial by general or special court-martial with counsel rights broader than those available to their civilian counterparts; an accused has the right to detailed military counsel, military counsel of choice if reasonably available and, at his own expense, civilian counsel of choice

Military Justice Personnel: Defense Function: Individual Military Counsel

1. Congress has provided members of the armed forces facing trial by general or special court-martial with counsel rights broader than those available to their civilian counterparts; an accused has the right to detailed military counsel, military counsel of choice if reasonably available and, at his own expense, civilian counsel of choice

Military Justice Personnel: Defense Function: Civilian Counsel

1. Congress has provided members of the armed forces facing trial by general or special court-martial with counsel rights broader than those available to their civilian counterparts; an accused has the right to detailed military counsel, military counsel of choice if reasonably available and, at his own expense, civilian counsel of choice; appellant’s right to civilian counsel of choice is further protected under RCM 506(c) which states that defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown; nevertheless, this right to civilian counsel of choice is not absolute and must be balanced against society’s interest in the efficient and expeditious administration of justice; a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar
2. when an accused seeks to excuse and replace civilian counsel, he also may implicitly be seeking a continuance in order to procure replacement counsel; a military judge should require the accused to explicitly address this issue on the record; when an accused’s request to release and replace counsel could create the need for a continuance, the factors announced in US v. Miller, 47 MJ 352 (CAAF 1997), can guide the trial court in balancing the accused’s fundamental right to counsel of choice, the efficient and expeditious administration of justice, and the demands of the court’s calendar; principal among these in situations such as this are timing considerations, namely, whether an accused’s request to release counsel requires a continuance and, if so, what the length of such a continuance might be; other factors include surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witnesses or evidence requested, prejudice to the opponent, whether the moving party has received prior continuances, good faith of the moving party, use of reasonable diligence by the moving party, possible impact on the verdict, and prior notice

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar
2. when an accused seeks to excuse and replace civilian counsel, he also may implicitly be seeking a continuance in order to procure replacement counsel; a military judge should require the accused to explicitly address this issue on the record; when an accused’s request to release and replace counsel could create the need for a continuance, the factors announced in US v. Miller, 47 MJ 352 (CAAF 1997), can guide the trial court in balancing the accused’s fundamental right to counsel of choice, the efficient and expeditious administration of justice, and the demands of the court’s calendar; principal among these in situations such as this are timing considerations, namely, whether an accused’s request to release counsel requires a continuance and, if so, what the length of such a continuance might be; other factors include surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witnesses or evidence requested, prejudice to the opponent, whether the moving party has received prior continuances, good faith of the moving party, use of reasonable diligence by the moving party, possible impact on the verdict, and prior notice

Military Justice Personnel: Military Judge: Discretion

1. a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar
2. in this case, the military judge abused his discretion in denying appellant’s request to excuse and replace his civilian counsel due to a perceived conflict of interest where the military judge failed to balance appellant’s right to choice of counsel against the demands of the court’s calendar and the concerns of fairness and efficiency as well as against the other factors mentioned in US v. Miller, 47 MJ 352 (CAAF 1997)

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two

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

1. an appellate court reviews a military judge’s resolution of an accused’s request to excuse and replace his civilian counsel for an abuse of discretion