Thursday, July 09, 2009

New CAAF opinion on detailing authority for defense counsel

United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009). Chief Judge Effron writes for the majority, holding that "the convening authority erred in treating one of Appellant's defense counsel as not properly detailed," but concluding that the error was harmless. Judge Ryan concurred in the judgment.

After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol (Jon Shelburne) as a defense counsel in the case. The Reservist LtCol was on the East Coast and the case was being tried in Hawaii. The CA balked at providing funding for the Reservist's representation of the accused, contending that there was no authority for the Chief Defense Counsel of the Marine Corps to detail the Reservist to the case. When the Reservist sought a continuance of the Article 32 investigation, noting the funding problem, the CA responded that the Reservist "is not detailed as counsel and has no authority to act in this matter.” The Reservist subsequently showed up at the 32. The IO refused a defense request for a continuance, but allowed the Reservist to participate as defense counsel over the trial counsel's objection. When the two defense counsel tried to submit a PTA proposal to the CA, the CA refused to accept it, maintaining that the Reservist hadn't been properly detailed. The inexperienced active duty counsel then resubmitted the proposal without the Reservist's name on it, at which point the CA agreed to consider to PTA proposal, which the CA ultimately denied after refusing to meet with the Reservist.

The case was then referred to a court-martial. A military judge refused to allow the Reservist to participate in an 802 conference. Another military judge presided over the court-martial. He ruled that the Reservist had been properly detailed and that the Chief Defense Counsel of the Marine Corps had the authority to detail him. The military judge denied a UCI motion and a motion to reopen the Article 32 due to the limitations on the Reservist's ability to represent the accused at that point. While the motions were pending, the CA met with the Reservist concerning a PTA and ultimately the parties entered into a PTA.

During the plea inquiry, the military judge advised the accused that by entering into the PTA, he was giving up his right to challenge the denial of the motion for a new 32 and he was waiving any defect in the 32.

CAAF treated the military judge's ruling that the Reservist had been properly detailed as the law of the case. CAAF then ruled:

[T]he convening authority erred by restricting the role of Appellant's detailed defense counsel 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 LtCol Shelburne's initial detail as Appellant's defense counsel. These actions violated Appellant's rights under Article 27, UCMJ.
CAAF also concluded that "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."

CAAF then assessed whether the accused had been prejudiced by the error. First, CAAF held that there was not a denial of counsel rising to the level of a structural error. The court therefore had to determine whether the error was harmless. The majority then assumed without deciding that the error constituted a Sixth Amendment violation and performed a constitutional harmlessness test, concluding that the error was harmless beyond a reasonable doubt.

Judge Ryan wrote separately. She concluded that the error in this case was statutory and was not a constitutional violation. She pointed out that at all relevant times, the accused was represented by a detailed defense counsel who was recognized by the government and there is no claim that that counsel's representation was deficient. She observed that "a military accused has neither the absolute right to detailed counsel of choice, nor the right to the assistance of two counsel." Judge Ryan concluded that "there is no basis for even suggesting that Appellant's Sixth Amendment rights were violated by the limitations placed on Lt. Col. Shelburne."


Anonymous said...

I concur in Judge Ryan's concurring opinion.

Anonymous said...

Dear Judge Ryan Clerk:

Put some more 'of course' in that opinion to make it REALLY good. Of course!

Very truly yours (of course),

Writing Snob

Anonymous said...

Writing snob -- do you think double use of " of course" is more or less preferrable to insertion of expletives like duh, dumb a**, etc.?

Anonymous said...

Warning, this comment delves into minutiae.

Chief Judge Effron, in the majority opinion, abbreviates Lieutenant Colonel as “LtCol.” (No period after either the “t” or “l”) While Judge Ryan, previously an active duty Marine, abbreviates Lieutenant Colonel a “Lt. Col.” (Using a period after both the “t” and “l” and a space between the period after “Lt” and the “Col.”)

According to the Department of the Navy Correspondence Manual, SECNAVINST 5216.5D , Appendix A, Military Models of Address, the abbreviation for a Marine Corps Lieutenant Colonel is “LtCol” with no period or space between the “t” and the “c.”

You are all likely completely indifferent to this comment, but it did catch the eye.

Anonymous said...

Where was the SJA in all of this?? You'd think any SJA worth his salt would have told the CA that this issue wasn't worth taking a stand over, and that to refuse to consider a PTA because of it was unbecoming and unnecessary.

John O'Connor said...

Let's hear it for the IO who "manned up" and defied the CA by letting Shelburne participate.

I don't know one way or the other if the second MJ was right on his reading of the regs, but it does seem odd that the CA could get stuck footing the bill for a detailed counsel from far away but have no control over that process. So I hope the right answer is that the funds come from HQMC or somweplace other than the CA.

Dwight Sullivan said...

JO'C, the opinion does say that Judge Landrum ruled that HQMC rather than the CA had to foot the bill. See slip op. at 8.

Anonymous said...

So any detailing authority can detail distant TDC and HQ must pay the bill?

Me thinks Colonel Sullivan (USMC res) may be TDC on more cases in the near term.

John O'Connor said...


I get that this is how the second MJ read the regs. What I'm saying is I hope that's correct, because it makes sense.

Anonymous said...

Anon 1104,

It was the SJA who took this stand and refused to recognize LtCol/Lt. Col. Shelburne, the CA was simply taking the SJA's advice in this case. Coincidentally, that SJA is now the Code 46 Director.

Cloudesley Shovell said...

I have heard rumors, here in my comfortable London residence, that certain regulations have since been amended or clarified to ensure that a CA doesn't get sandbagged with paying for a defense counsel from an ocean and a continent away.

I hardly think that an accused's right to counsel entitles him as a matter of right to counsel distant from the place of trial, for said counsel might be selected for the sole purpose of fiscally fatiguing the convening authority into compliance with defense demands.

So where was that SJA? Who was that SJA, anyway? Whoever he or she was, the SJA (and the CA) at least had the courage of his convictions. It appears here that the SJA counseled his CA to take a stand in this particular case to ensure that the detailing of counsel from many thousands of miles away did not become the norm. Do we really want SJAs who routinely sacrifice principles or "the right thing to do" on the altar of expediency? I think not.

Don't forget that the CA (and SJA) could have insulated this case from appellate review by simply disapproving any part of the sentence that made the case eligible for mandatory Art. 66 review. That would have been the expedient and convenient thing to do. They did not do so, however.

At the end of the day (assuming the rumors I have heard are true) they got detailing rules clarified to prevent this from happening in the future (not only the issue of detailing expensive, distant counsel, but also detailing a reservist, which was very unusual), and the conviction was affirmed on appeal.

Was that good lawyering because it considered the big picture, or was it bad lawyering because the SJA didn't just roll over and do what was easy and expedient?


Anonymous said...

It would seem the entirety of your argument is based from a funding perspective.

So seems to me he requested and was granted by the defense bar, an attorney of some experience who happened to be far away.

That isn't some scheme or tactic by the accused, he does not control assignments.

It likely also isn't a scheme or tactic by the defense bar.

It is a valid concern, but seems to me the fight is/was not "this person isn't detailed," the fight is/was, we shouldn't have to pay the travel costs of this person who was detailed.

It's a stand the SJA took, perhaps even a necessary one, but principled?

Anonymous said...

Cloudesley –

We all know you have some problems with charts, e.g., the outcroppings just south of England. There seems to be much made of the travel expense to bring LtCol Shelburne serve on the case at Camp H.M. Smith, HI. Where, prey tell, could a DC have been assigned from that would not have caused a travel expense? Possibly the Johnston Atoll, or some other guano deposit?

It seems there is little appreciable cost difference between bringing a DC from Oki or Camp Pendleton and LtCol Shelburne from R.I. Should the appellant have been forced to accept Capt S, with one month of experience as a DC, to serve as his counsel in a GCM? Capt S was the senior DC for the Corps in Hawaii.

John O'Connor said...


Was Captain Snow the most experienced USMC DC in Hawaii? As you probably know, being the "senior" counsel doesn't necessarily equate with most experienced, as you'll have senior lawyers who are LEP types, or had initial tours outside the courtroom, and who are techynically senior but by no means the most experienced.

Not being argumentative, I just don't know the answer. I am asurprised, however, that the most senior (in rank) DC in Hawaii would be a captain.

Cloudesley Shovell said...

Apparently there are competing principles at work here:

(1) The defense bar should have unfettered discretion to detail the best counsel to the case, regardless of geographic concerns, funding concerns, or other such concerns. Therefore, if the best counsel for a court-martial in Hawaii is a reservist not on active duty from the east coast of the United States, so be it. The gov't must eat the cost.

(2) The gov't, as the entity footing the bill (as well as the entity tasked with efficient and orderly administration of courts-martial, speedy trial, etc.), can insist on certain enforceable standards and limitations on the discretion of the defense bar to detail counsel to a case, taking into consideration such things as cost, anticipated duties and workload of counsel, time commitments, etc.

You can argue all day long about which principle should prevail. Both have their pros and cons. But neither one is by definition "unprincipled."

Anonymous said...

JOC - He was

Cloudesley Shovell said...


Just now saw your latest 1016 comment. I was replying to anon at 0823.

Thank you so much for reminding me about that unfortunate incident near Porthellick Cove. While you're at it, why don't you give me a nice paper cut and pour lemon juice on it?

Also, I agree w/your first comment, why the LtCol / Lt. Col. dichotomy? Maybe there will be a revision before final publication.

On to the counsel issue . . . The accused here had qualified counsel from the local area detailed to him. If he wanted a more senior, more experienced counsel, he could have made an individual military counsel request.

I doubt the intent of Art. 27, RCM 503, RCM 505, the JAGMAN and the Marines' LEGALADMINMAN was to permit a detailing authority to detail the "best counsel" without regard to geography, cost, counsel's other duties, time commitments, whether counsel was even on active duty or not, etc., because such an interpretation just provides the defense bar an end-around the IMC regulations. In fact, the JAGMAN limits detailing authority to the counsel's commanding officer. Was the Chief Defense Counsel really LtCol Shelburne's commanding officer when, per the LEGALADMINMAN section 2002, the CDC has no "operational or administrative control of SDCs or defense counsel"?

In this case, if the original DC thought he was not experienced enough to handle the case, he and his client should have raised the issue via motion before the military judge, together with an IMC request, per RCM 505(b) and RCM 506, and JAGMAN 0131. Instead what happened was a rather back door--the chief defense counsel detailed a reservist counsel who then formed an A/C relationship, and then took the stance that the gov't was stuck, since an A/C relationship had been formed. That's rather sharp dealing. It worked in this case, but I doubt you'll ever see this happen again.

Paul said...

Does this mean the Lcpl gets the inexperienced DC and has his case be one which the DC learns the ropes? it seems to me that the JA community and the defense bar have a duty to populate regions that have DC with reasonably experienced ones.

This is one reason in the sea services CAs are deciding not to send cases to CM. Why would the CA have to pay for a more experienced JA to fly to HI to do the case. Shouldn't the CA reasonably expect and deserve that the USMC has provided the appropriate coverage in the geographic area?

Have fun storming the castle.

OBTW, I am a very experienced counsel but am service in Iraq. Any accused in San Diego or HI want a counsel with more experience than the one they have now?

Anonymous said...

It is strange, "of course," that no one raised the issue of Captain Snow's ethical obligations. Whether or not those are derivative of the 6th Amendment or not, most State Bars require an attorney who is "over their head" in a case to associate themselves with "qualified" counsel. Retirement eligible officers do indeed present special and complex collateral issues.

"Of course," the real issue here is funding - central [HQ] funding of all defense travel would eliminate the issue and, as here, the UCI potential.

And "of course," one wonders why the SJA didn't use Art. 6(b), to resolve this issue at the HQ level without creating litigation, UNLESS HQ wanted it litigated....

Anonymous said...

"The gov't, as the entity footing the bill (as well as the entity tasked with efficient and orderly administration of courts-martial, speedy trial, etc.), can insist on certain enforceable standards and limitations on the discretion of the defense bar to detail counsel to a case, taking into consideration such things as cost, anticipated duties and workload of counsel, time commitments, etc."

What is the principle there again? How do you limit the discretion of the defense bar as to who they assign to cases without running into UCI concerns? What about IMC requests? Must the defense bar run those for approval through the government before granting them when they are requests of counsel currently assigned to defense? (certainly if they are counsel not assigned to defense currently that is a different story).

I understand the concern, money. I dont understand the principle involved because cost is not a valid reason to, by itself, deny an accused an attorney. Particularly when apparently the Marine Corps does not want to centrally fund it's defense corps.

The MC made the choice to fund defense attorneys from each SJA office. Bad choice but not fair to then say you can only pick from the pool of defense attorneys we say you can.

Anonymous said...

Nothing is stopping an accused from hiring any lawyer they want. Unbelievable that the taxpayers have shell out all this money so a criminal can get a Johnny Cochran defense team. Don't do the crime if you can't do the time (or don't want to spend money on lawyer defending yourself).

Dwight Sullivan said...

0818 Anon, some court-martial accused are innocent.

Anonymous said...

The detailing authority of the CDC and the RDCs remains an issue in the Corps. The RDC on the east coast (a former boss) has been in a running battle with the SJAs on the east coast on whether the RDC can detail himself to cases up and down the east coast without SJA approval (one SJA went so far as claiming that detailing of DCs was controlled by the CA). The RDC seems to have won this battle (or the SJAs backed down), as he been detailing himself to any case within his region he wants to (kind of the intent of his billet) using the authority provided to him by both his CO and the CDC and funding the defense bar long ago obtained funding from by HQMC to allow the RDCs to travel to take cases -- although I can't help but note that the east coast RDC does not take very many cases and usually requires an IMC request (which requires the CA to fund his travel) before he takes a case. The RDC seems to save his funding to provide training for my former colleagues and I (the training has been very good and the acquittal rate is very high, so what he's doing seems to be working - or the SJAs are sending bad cases to trial).

Anonymous said...

Even if this USMC DC was not very experienced, there is a whole host of other military defense counsel in HI.

Anonymous said...

Concur with Anon 0214, it makes one wonder whether DC's detailing authority fulfilled his obligation in the first instance to assign counsel who possessed the requisite qualifications.

Cossio said...

0818 Anon, You have a bright future ahead of you as an SJA with comments like that.

I gotta put my two cents in.

I've been hearing all this arguing over money. Seems stupid.

For one, how much of a cost difference is it to fly someone from HI then another DC from another state. Seems negligible.

Two, the Gov spends all types of money flying in experts and experienced TC familiar with certain offenses.

Again, and I know a lot of you are sick of hearing about AF comparisons but I know it isn't a problem with our CA's to approve another DC, Circuit DC, or Circuit TC.

In my second case they flew in a Judge and TC (The very talented LtCl. Kurlander and Maj. Thomas respectively) from the West Coast to Florida. They also flew in a couple of experts.

They wouldn't approve one of our experts because of a previous conviction (which they were mistaken, he never was convicted) so they approved a more expensive, more qualified witness.

The Anons comments that an accused can "buy his own lawyer" is infuriating. Especially when the Gov is throwing unlimited resources at an accused.

Cap'n Crunch said...


This case involved a suspended sentence -- basically, as I read it, the LtC was allowed to retire as a Major, and the rest of the sentence was suspended. I assume there was no proceeding in revision to revoke the suspended sentence.

Maybe I should know the answer to this, but... does the suspension of the entire punishment, if the suspension period runs and thus the entire suspension is executed, divest the CCA and CAAF of further jurisdiction? I assume the answer is no, since the case was reviewed, but I'm not sure why.