U.S. v. Gilmet, 83 M.J. 398

Military Justice Personnel: Defense Function: Right to Counsel

1. Congress has granted military accuseds the right to detailed military counsel, military counsel of choice if reasonably available, and civilian counsel of choice at the accused’s own expense; once an attorney-client relationship has been established, the accused is absolutely entitled to retain that relationship in the absence of demonstrated good cause; when government actions frustrate the continuation of an established attorney-client relationship, the accused’s Article 38(b), UCMJ, counsel rights are violated as a result
2. RCM 505(d)(2)(B) specifies the only ways in which an established attorney-client relationship may be severed; in this case, defense counsel could be excused upon request of the accused or application for withdrawal by defense counsel for good cause shown
3. in this case, the UCI caused by statements from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career frustrated the continuation of an established attorney-client relationship and violated appellant’s Article 38(b) rights to counsel; although appellant waived his right to continued representation by his selected counsel, his decision to allow his counsel to withdraw under the pressure of UCI was not an action that could fairly be construed as a voluntary waiver of the attorney-client relationship
4. while not all Article 38(b) right to counsel violations will result in a finding of prejudice, the character of the governmentaction in frustrating an existing attorney-client relationship is an important consideration when conducting the prejudice inquiry
5. in this case, the government’s frustration of the continuance of a proper attorney-client relationship as the result of UCI arising from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career materially prejudiced appellant’s substantial rights to counsel; although the government did not actively restrict counsel from representing appellant, its failure to address the conflict of interest created by the UCI prevented counsel from representing appellant; the government prejudiced appellant’s Article 38 rights by creating the perception in the minds of appellant’s defense counsel that their future in the service would be jeopardized if they continued to zealously advocate for appellant

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. RCM 801(a)(3) grants military judges the authority to exercise reasonable control over the proceedings; this authority includes control over when, and in what order, motions will be litigated

Military Justice Personnel: Military Judge: Discretion

1. contrary to the government’s claim that the military judge circumvented the established UCI framework by excusing defense counsel before it could put on argument regarding its curative measures for the UCI, the military judge’s decision to address the conflict-of-interest issue at the outset was an attempt to determine to what extent the UCI infected the proceedings; once he learned that appellant’s military counsel still believed that a conflict existed, it was within the military judge’s discretion under RCM 801(a)(3) to explore the conflict issue to ensure that the proceedings did not continue until appellant obtained conflict-free counsel or consented to being represented by conflicted counsel; although the military judge’s inquiry concluded with the withdrawal of appellant’s military counsel, he did not abuse his discretion by fully resolving the conflict-of-interest issue before hearing argument from the government regarding whether it met its burden with respect to the UCI

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF will decline to entertain an argument by the government that it failed to raise below

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the government’s frustration of the continuance of a proper attorney-client relationship as the result of UCI arising from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career materially prejudiced appellant’s substantial rights to counsel; although the government did not actively restrict counsel from representing appellant, its failure to address the conflict of interest created by the UCI prevented counsel from representing appellant; the government prejudiced appellant’s Article 38 rights by creating the perception in the minds of appellant’s defense counsel that their future in the service would be jeopardized if they continued to zealously advocate for appellant

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

1. an appellate court reviews allegations of UCI de novo
2. an appellate court accepts as true the military judge’s findings of fact on a motion to dismiss for UCI unless those findings are clearly erroneous

Miscellaneous Matters: Command Influence: Generally

1. Article 37(a)(3), UCMJ, prohibits, in relevant part, any person subject to the UCMJ from attempting to coerce, or, by any unauthorized means, attempting to influence the action of a court-martial
2. in this case, appellant presented some evidence of UCI where he submitted affidavits establishing that a superior officer, who oversaw slating and assignment process for judge advocates, made statements that caused appellant’s counsel to believe that his military career would be in jeopardy if he continued to represent appellant
3. contrary to the government’s claim that the military judge circumvented the established UCI framework by excusing defense counsel before it could put on argument regarding its curative measures for the UCI, the military judge’s decision to address the conflict-of-interest issue at the outset was an attempt to determine to what extent the UCI infected the proceedings; once he learned that appellant’s military counsel still believed that a conflict existed, it was within the military judge’s discretion under RCM 801(a)(3) to explore the conflict issue to ensure that the proceedings did not continue until appellant obtained conflict-free counsel or consented to being represented by conflicted counsel; although the military judge’s inquiry concluded with the withdrawal of appellant’s military counsel, he did not abuse his discretion by fully resolving the conflict-of-interest issue before hearing argument from the government regarding whether it met its burden with respect to the UCI
4. an affidavit from the SJA to the CMC stating that service as a defense counsel was vital to overall mission success and would in no way be detrimental to an individual’s career did not cure the conflict of interest between appellant and his military counsel arising out of UCI caused by statements from a superior officer who implied that counsel’s representation of appellant would jeopardize their careers where (1) the affidavit was a generic statement; (2) it was not seen by others who heard the statements, (3) was not produced until after appellant moved to dismiss the charges; (4) did not admonish the superior officer; and (5) the superior officer denied that his remarks were inappropriate
5. the removal from the slating and assignment process of the superior officer who implied that military defense counsel’s representation of appellant would jeopardize counsel’s career did not cure the conflict between appellant and his counsel arising out of the UCI because the removal did nothing to remedy the perception that other officers would punish military defense counsel in the promotion process where the superior officer described a pervasive mindset throughout the JAG community that caused defense counsels’ careers to stall out because of their service in defense billets
6. military defense counsel’s selection for a prestigious and competitive billet did not cure the conflict of interest between appellant and counsel arising out of UCI by a superior officer who oversaw the slating and assignment process for judge advocates when that officer implied that counsel’s continued representation of appellant would jeopardize counsel’s career because (1) the billet assignment was in no way relevant to counsel’s relationship with appellant; (2) counsel was not aware of his selection prior to the superior officer’s remarks; and (3) even if counsel had known about his assignment before the remarks, that one-time assignment had little to do with counsel’s fear that zealously representing appellant would jeopardize futureassignments and promotions
7. in this case, the UCI caused by statements from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career frustrated the continuation of an established attorney-client relationship and violated appellant’s Article 38(b) rights to counsel; although appellant waived his right to continued representation by his selected counsel, his decision to allow his counsel to withdraw under the pressure of UCI was not an action that could fairly be construed as a voluntary waiver of the attorney-client relationship
8. in this case, the government’s frustration of the continuance of a proper attorney-client relationship as the result of UCI arising from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career materially prejudiced appellant’s substantial rights to counsel; although the government did not actively restrict counsel from representing appellant, its failure to address the conflict of interest created by the UCI prevented counsel from representing appellant; the government prejudiced appellant’s Article 38 rights by creating the perception in the minds of appellant’s defense counsel that their future in the service would be jeopardized if they continued to zealously advocate for appellant

Miscellaneous Matters: Command Influence: Burdens

1. (to establish a prima facie claim of actual UCI, the accused bears the burden of presenting some evidence of facts that if true, would constitute UCI); although this initial burden is low, the accused must present more than mere allegations or speculation; once the accused satisfies his burden, the burden shifts to the government to prove beyond a reasonable doubt that the UCI will not affect the proceeding; in the alternative, the government can also disprove the predicate facts upon which the UCI allegation is based or persuade the court that the facts do not constitute UCI)