CAAF, in a 4-1 decision with Judge Maggs dissenting, reversed the NMCCA and set aside SSgt Watkins' findings and sentence without prejudice.
Watkins' opinion here.
Appellant was convicted contrary to his pleas of two specifications of failure to obey a lawful order, one specification of sexual abuse of a child, and one specification of obstruction of justice, in violation of Art. 92, 120b, and 134, UCMJ. CAAF granted Appellant's petition on three issues but only addressed Issue II in their opinion:
The Sixth Amendment guarantees an accused the right to retain counsel of his own choosing. Before trial, and after his civilian counsel moved to withdraw—citing a perceived conflict of interest—Appellant asked to release his civilian counsel and hire a different counsel. Did the military judge err by denying this request?
On appeal, Appellant argued that the military judge abused his discretion by not allowing him to dismiss his civilian defense counsel after watching trial counsel repeatedly accuse his counsel of misconduct. At trial, allegations were made that insinuated that Mr. Bruce White, Appellant’s civilian defense counsel, was assisting Appellant’s wife in avoiding a subpoena. Notably, at an Art. 39(a) recess, Mr. White and LtCol Keene, RTC of Camp Pendleton, engaged in a heated argument. LtCol Keene, in the course of that argument and in a raised voice said, “this isn’t over” or to that effect, and said something along the lines of Mr. White is “being shady.” It was after this argument that Mr. White moved to withdraw from Appellant’s trial, citing an interest directly adverse to his client. The military judge then asked Appellant who he wanted as representation, Appellant stated that he did not want Mr. White to represent him and he would like to bring on a new civilian defense counsel. However, after hearing testimony from LtCol Keene, the military judge did not believe that Mr. White had an adverse interest and that the arguments in favor of removing Mr. White were “opportunistic.” CAAF disagreed.
Agreeing with Appellant, CAAF found that the military judge did abuse their discretion in denying Appellant’s request to dismiss his civilian defense counsel. Holding that while Congress intended to create broader counsel rights than available in civilian courts, the right to counsel of your choice is not absolute and must be balanced with the efficient administration of justice. CAAF, relying on their precedent, stated that a military judge must balance the factors discussed in United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997), if the request to excuse and replace counsel would require a continuance. However, the military judge did not balance the Miller factors in his resolution of Appellant’s issue, rather the military judge based his decision on two conclusions: “(1) his in-court observations of Appellant effectively communicating with his counsel, and (2) his belief that Appellant’s request to excuse Mr. White was an implicit request for a continuance, and that this request was “opportunistic” and an obvious attempt to impede the prosecution given the evidence of Appellant’s attempts to prevent his wife and daughter from appearing for trial.” These conclusions were not enough, absent the military judge’s balancing of the Miller factors in denying Appellant’s request to remove and replace his civilian defense counsel, the military judge abused their discretion.
Judge Maggs, the lone dissenting judge, disagreed on the majority’s interpretation of Miller. In his dissent, Maggs, unlike the majority, discussed each assignment of error. Citing Miller, Maggs noted that there is not a requirement that each factor be considered and expressly discussed, and that such balancing would be “highly burdensome, often unnecessary, and inconsistent with other precedent.” With this reasoning, Maggs found no abuse of discretion because the military judge’s discussion at trial of bad faith, prior continuances, and availability of witnesses, satisfied Miller.
CAAF relied heavily on the facts at trial in deciding this case, for more detailed facts please see the opinion.
The recesswas asked for after the military judge ruled that Appellant’s wife’s credit card purchase at a strip mall near Appellant’s civilian defense counsel’s office was not relevant.
Appellant was also detailed two defense counsel.
The military judge stated for the record that Mr. White and Appellant communicated cooperatively; the government’s difficulty in securing the victim and Appellant’s wife; the Appellant’s internet searches on extradition to avoid testimony; and his belief that given the circumstances, if postponed, both the victim and Appellant’s wife would not be available for trial.
 Miller 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.
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