Monday, March 09, 2009

Supremes reemphasize that appointed defense counsel aren't state actors

As discussed below, today's SCOTUS Brillon opinion isn't a helpful case for the defense for speedy trial or appellate delay purposes. But it may prove beneficial to the defense in many other ways. The case reemphasizes that a public defender isn't a state actor for non-employment/management purposes.

Consider this language from the majority opinion:

"[O]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program." Polk County v. Dodson, 454 U. S. 312, 318 (1981) (internal quotation marks omitted). "Except for the source of payment," the relationship between a defendant and the public defender representing him is "identical to that existing between any other lawyer and client." Ibid. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.
This language suggests that the military can't put limitations on a military defense counsel's representation that it couldn't impose on a civilian providing representation. So, for example, a military defense counsel who provides information to the media isn't releasing information on behalf of the service any more than a civilian defense counsel who releases information is. What other restrictions limit military defense counsel that may be challenged using this language?


Anonymous said...

I don't think the reasoning carries over to the .mil

As I read it, the court set forth its main reason for the holding as the assigned defense counsel being the agent for the accused. In the military, nothing could be further from the facts.

More seriously, the Supremes also came right out and said that a broken defender system would be delay due to state action and thus could kick the case. The military defense system is and has been broken as a system for years.

In fact, the entire military justice system only functions at all because it railroads innocent (in the ways of the legal system) victims into deals where they give away huge issues of proof. The system depends on the staffers using the power of their officer's uniforms and ranks to stuff the victims--using those same symbols that the victims have been trained since day one in the military to worship and obey without thought or question.

John O'Connor said...

Thank you for your insight, Robert Sherrill.

Was it ever seriously in doubt that "the military can't put limitations on a military defense counsel's representation that it couldn't impose on a civilian providing representation."

I know it has happened, and some have said that the relationship is different, but is (or was) that really a seriously defensible position?

Shelton Smalls said...

If I understand it right, it sounds like the first comment is from an ex-Accused. If your referring to the accused as the victim. It would interesting to hear more details behind your rant.

The military defense system is the absolute gold standard in any jurisdiction in the US. The accused is better defended and has far more procedural rights than anywhere else. I never heard of any restriction on a military defense counsel that wouldn't apply generally.

Anonymous said...

Look pals, you are all contributors, and confederates, to a rigged system. You are a bunch of staffer wonks.

Do any of you find my comments helpful?

Mike "No Man" Navarre said...
This comment has been removed by the author.
Mike "No Man" Navarre said...

Mr. Smalls:

Allow me to throw out 2:

(1) Military DC can't refuse an order from their superior officer, even if he is the prosecutor.
(2) Military DC can't call the convening authority a lying sack of %^$# in the press without risking potential charges against themselves--I was a TC, not a DC, but had plenty of friends that felt reluctant about going public agaisnt a CA even in a high profile case.

Anonymous said...

If the order relates and/or impacts the ability to zealously represent a military accused -- the order would be unlawful and can/should be disregarded. Additionally, appropriate disciplinary action (Article 15, GOMOR, General Court-martial, etc) should be brought against an officer who thinks he/she can order a defense counsel to comply with an unlawful order.

Shelton Smalls said...

Mr. Navarre,

I respectfully disagree with both of your points.

First, at least in the AF, the Defense chain of command runs up defense chains. Sure you have to give respect to a superior officer if he or she is TC. But, that’s just the same amount of respect you give any superior officer. (And basically without the Sir or Ma’am, it’s the same respect you would give opposing counsel who is the same rank. All state bars require lawyers to be civil with opposing counsel.) A superior officer who is not in your chain of command generally can’t give you any orders. Could you give an example where TC would give an order to an ADC? Even something hypothetical? I’m really curious to see what you are talking about here.

Your second point is outlandish…(“Military DC can't call the convening authority a lying sack of %^$# in the press without risking potential charges against themselves”) First, a civilian defense counsel can’t make baseless accusations against a member of the judiciary. My state bar publishes all the disciplinary actions that occur and every few months a lawyer is admonished for calling a judge corrupt in the media without any evidence. In fact, just last month a trial judge was admonished by the State Supreme Court for publically criticizing his fellow trial judges for not following, in his opinion, the proper procedure for setting bail. The Supreme Court even acknowledged that the judge’s comments would have been appropriate at a judicial conference, but not in the media…..Generally speaking to call a judge or convening authority a lying sack of shit without anything to back it up is just unprofessional in the military or in the civilian world.

Consider the alternative hypothetical situation; a defense counsel has real evidence of wrong-doing by the convening authority or a judge. A military defense counsel could not be disciplined for making a factual point based on some evidence. And, anyway if the ADC felt bashful about going public themselves, any good defense counsel worth his salt could make sure the evidence got to the IG or was somehow leaked to the media.

I think we call agree that A Few Good Men was a great movie; but, the plot point that Tom Cruise would get in trouble for accusing Col Jessup was just an artistic license to make the best cross-exam in the world more dramatic. I’ve seen a lot of commanders grilled on the stand and asked every reasonable question imaginable. But, true if a counsel in a military or civilian court called a witness a “lying sack of shit” they would be held in contempt. Just last week a civilian trial judge in my circuit held a sidebar and threatened both the prosecutor and defense counsel that if they made the statement to the witness “I remind you that you under oath” (or other variations of that statement which imply that counsel thinks the witness is lying and is trying to convey that to the jury) one more time he would hold them in contempt. The judge’s position was that it was his job to instruct the witness.

Once again I reiterate my point: There are no differences between the zealousness of a military defense counsel or a civilian defense counsel. (If anything, it is my opinion and experience that the military defense counsel will do a far better job than the average civilian defense counsel.)


Shelton Smalls

Anonymous said...

Good guess, but no. I was former enlisted in a non-legal job. The first time someone from my unit was pushed out by the system I wondered.

I went to college and law school. During that life process I saw things from the other side, and didn't like that.

Don't get me wrong, the civvie courts have a lot of problems. The fact that many of the appointed counsel don't care much is a big one. The fact that the big city jails are hell is another.

However, the military system exists for two reasons. 1) to give accused officers (and some senior NCOs) the best levels of legal protection anywhere; and 2) to bulldoze enlisted out when the commander wants them gone.

Once the system wants them gone, it does what it needs to do. If for some reason DC does their job and starts defending their client, steps will be taken. Harrassment that makes Bligh look nice is a matter of course. That hardly happens, though, since most DC understand that their job is to make a record to make the conviction stand.

***If I understand it right, it sounds like the first comment is from an ex-Accused. If your referring to the accused as the victim. It would interesting to hear more details behind your rant.***

Mike "No Man" Navarre said...

Shelton Smalls:

I appreciate your debate on this issue as it is an interesting one. But I can't agree with you.

Before getting to anything substantive, my use of the phrase “lying sack of %^$#” was meant as artistic license, not what one would actually say. SO any of your points about being intemperate or not civil I'll have to apologize for not stating precisely what a TDC should say.

First, you said, "A superior officer who is not in your chain of command generally can’t give you any orders." I am not sure what branch of the service you were or are in, but, unless its the Air Force, I would say that is on its face FALSE.

Second, you asked, "Could you give an example where TC would give an order to an ADC?" This fact set is adapted from a real life story. A TDC in our command whose client was ordered by the CO of a unit to bring his client to the squadron to sign paperwork related to his OTH in lieu. The client refused because the military had mistakenly given him an EOS separation which was being separately processed--unbeknownst to his command. When the command found that the client was sitting in the TDC's office the CO went ape shit and asked the NLSO CO (in the Navy that's the CO for the Defense shop, and also at least until recently the CO for legal assistance and claims) to order his counsel to produce the member. There would not even be an issue here if the counsel were civilian. While a good NLSO CO would out of hand refuse to issue such an order, but I don't know that all NLSO COs would refuse to attempt to coerce there DC into doing so.

Third, you said, "Generally speaking to call a judge or convening authority a lying sack of sh*$ without anything to back it up is just unprofessional in the military or in the civilian world." Your statement proves my point, what if you do have something to back it up? A LOT of military counsel would still be reluctant to go to the press about the case, even if it would help their client.

You then opine that, "And, anyway if the ADC felt bashful about going public themselves, any good defense counsel worth his salt could make sure the evidence got to the IG or was somehow leaked to the media." That may be the case, though in my experience a lot of good DCs with facts taht would help their case didn't go to the media or some other outside organization. The bottom line is that military TDCs are reluctant, that's reality.

As far as in the courtroom, I agree with you that most military TDC are as good, if not better, than the civilian military defense bar. There are some very good civilians that do trial work that are much better than many military TDC and some very good military TDC (though they only stay in the job for a few years) that are better than many civilian TDC.

Having one of the service military justice policy shops comment on the case and the issue of independence of TDC would go a long way to making counsel less apprehensive.

Bridget said...

In general I have not found MDC to be any less "zealous". Often MDC are new lawyers and new officers at the same time. Those officers who are a bit longer in tooth seem to have much less a problem with opening their mouths. [Example, LTC Volkey].

There is a reason we have separate trial defense shops and why all the services should. It keeps people more honest.

I am a tad more cynical than some of the commenters here. I refer to say, US v Lewis 63 MJ 405, [yet another Mizer case] as a very good example of military lawyers run amuck. And we have a reason for dismissal for UCI.

I know that one of the reasons it is useful to have civilian counsel is the fact that I don't have to worry about an OER. I am aware that at a time when I had a greater connection to the gov't I was probably more guarded in what I said to the media, even in my civilian practice as the internet seems to have infinite memory.

I also don't think that the preponderance of the defendants are "innocent victims". Not that that has anything to do with providing a vigorous defense. Within the last few months I had a fellow who stomped out of my office quite angry when I agreed with his MDC's assessment of the case. I think he went to find a civilian counsel whom he thought would be more "positive" about his case. He is now staying in lovely reinforced dwelling with a very regimented schedule.

But, J'OC the limitations are not written. No, I don't think that the MDC's are in the pocket of the CA contrary to the belief of most clients. I do see civilians as having a lot more room to move creatively.

NBM3 said...

When I served (1989 - 1994) in the Navy both the defense and prosecution reported to the same CO. (I do understand that has now been changed.) But my defense counsel (who at the time was the senior defense counsel for NDW Washington and an O-4) was ordered off convalescent leave and back to duty with his jaw wired shut and whilst he was on narcotic pain medication to represent me after my court-martial was ordered to an earlier date. This judge advocate general officer protested but nonetheless was ordered by that CO back to duty. It's my understanding that a formal complaint was filed and then the complaining O-4 was forced to retire (he was a mustang having served as an enlisted chief prior to being commissioned and going to law school - he retired as an O-4) whilst the CO was later promoted to O-6 and served as an appellate judge. Later this same O-6 was an appellate judge on one of my appeals.

Prior to my defense counsel's jaw being wired shut national correspondent Jamie Gangel from the NBC Today show flew down from NY with a producer to meet with me and my defense counsel at the Washington Navy Yard. The CO of defense and prosecution ordered the O-4 to not discuss my case with NBC despite the fact that I authorized my defense counsel to discuss my case with NBC.

Shelton Smalls said...

Mr. Navarre,

It’s an interesting debate, much more interesting than doing my regular job! That’s why I spend so much time responding to these comments….You got me; I’m prior Air Force. (As LT Weinberg said in a “Few Good Men”: “I give orders all the time and nobody follows them”)…I understand that you didn’t mean the phrase literally, but all too often lawyers throw around the “E” word without any justification….

I agree with you that civilian (former military) defense counsel are more aggressive. (But I think you will agree that pure civilian defense counsel who take a military case are clueless…I had one that I was co-counsel with who just plain couldn’t comprehend why he couldn’t take depositions). But, I agree with the prior post that this is mostly explained by the fact that a trial-level defense counsel and even the next level up don’t have a lot of experience. But they are still better on average than a typical civilian defense counsel whether they are the public defender, appointed, or hired. Many a hired defense attorney will take the client’s thousands of dollars and screw up the case, but on average because hired atty’s are getting paid so well they do spend more time on the case. But, once you eliminate the experience factor from the equation, on average military defense counsel do a good job.

I had one case that was on the front page of the Air Force Times--I admit that I was way out of my league--but my client had hired a well-known defense counsel (former military) who used his jedi mind tricks to present the defense side of the case….I was and still don’t play in his league, but obviously the government can’t give that kind of representation to every client. There are only so many lawyers at that skill level and reputation.



PS: I was thinking through your example of a commander giving a DC an order and I’m not exactly clear that there was any violation there. It’s my understanding that a commander can order a military member to appear at their office to accept paperwork. It is unusual for a commander to order a DC to produce a military member. God knows a lawyer can’t control a client, but they can recommend that they comply with an order to appear in front of their commander…In the civilian world when a defendant jumps bail we can subpoena the defense lawyer and order them to testify that that they told the client about the court date. (But it’s usually unproductive because not only is the defense attorney happy now that they have a justification to withdraw from the case, but they will testify that they left a message or sent a letter and don’t know if the defendant got it.)

Anonymous said...

There does remain one service that does not have an independent defense chain - the Corps. The Regional DCs don't control their subordinate counsel, instead the SJAs control them. The SJAs can and do move the DCs "too early" - for an example see CAAF's Lee case sent back to Lejeune for a Dubay to determine if it really was true that the detailed defense counsel was moved mid-representation to the trial shop and worked for and had his fitness report written by the prosecutor. Rumor is the RDC took the case himself, proved up that the TC wrote the DC's report and put this system on trial.

Shelton Smalls said...

Anon 2139,

That is really news to me! I heard stories in the Air Force how before 1973 the TC and DC both worked in the legal office and the SJA would assign who did what for each case that they prosecuted.

But, I thought that was so long ago that it was in the dark ages. Is it really a fact that the Marines still do that?


John O'Connor said...

I was once told by a superior officer that he was going to move me from TC to DC for the second half of my tour. I told the officer I really preferred not to go to defense, but if I did "I would write and file a motion every single day." I stayed as a TC.