United States v. Cooper
No. 201500039 (N-M. Ct. Crim. App. 10 Dec. 2020)
In 2014, Appellant was convicted, contrary to his pleas, of three specifications of sexual assault and one specification of abusive sexual contact in violation of Article 120, UCMJ. In 2015, the Court ordered a DuBay hearing, in which the military judge found that Appellant’s trial defense counsel [TDC] was ineffective for failing to submit Appellant’s request for an Individual Military Counsel [IMC] who would have been reasonably available for his trial. Based on this finding, the Court set aside the findings and sentence and remanded the case for a new trial in 2018. However, the Judge Advocate General of the Navy then certified the case to CAAF asserting that Appellant waived his right to an IMC during a colloquy with the military judge. CAAF agreed that Appellant waived his right to an IMC and remanded to this Court to resolve the remaining issues.
Appellant formed an attorney-client relationship with Army National Guard CPT TN concerning the sexual assault investigation after they came to know each other in the Joint Task Force-Guantanamo Bay staff judge advocate’s office, where Appellant was assigned duties. However, Navy LT JB was detailed as Appellant’s TDC after charges were preferred. Appellant believed that LT JB’s representation of him at the Article 32 hearing had gone poorly and he wanted to request an IMC. During the DuBay hearing, LT JB testified that Appellant never requested CPT TN as an IMC and that CPT TN never told her he wanted to represent Appellant. CPT TN, however, testified that he did tell LT JB he had an attorney-client relationship with Appellant and wanted to represent him as his IMC. The DuBay Military judge found both witnesses credible, but ultimately found Appellant carried his burden to show he had told his TDC he wanted CPT TN for his IMC and that CPT TN was reasonable available.
At his arraignment, Appellant and his TDC had a colloquy with the military judge during which the judge asked TDC if any other counsel had been detailed or if IMC had been requested. LT JB answered, “No, sir.” The military judge went on to inform Appellant of his rights to counsel and to IMC, to which Appellant responded that he understood his rights, wanted to be represented by LT JB, and did not wish to be represented by any other counsel.
The Court addressed: (1) whether the TDC was ineffective concerning IMC (though the issue was held to be waived by Appellant); (3) whether Appellant was prejudiced by being deprived of his statutory right to IMC; and (2) whether the evidence was legally and factually sufficient.
Using their authority under Article 66, UCMJ, the Court disregarded Appellant’s waiver, found ineffective assistance of counsel by the TDC, and material prejudice to Appellant’s substantial statutory right to IMC. The Court set aside and dismissed the findings and sentence, and remanded for a new trial.
1. Disregarding Appellant’s Waiver under Article 66 The Court found that based on the text of Article 66 and the CAAF’s decision in United States v. Chin that they had the authority to disregard Appellant’s in-court waiver of his right to IMC and address the question of whether Appellant’s TDC was ineffective for failing to properly submit his IMC request. The Court first noted that Article 66 grants service courts of criminal appeals a “plenary, de novo power of review.” The Court then cited Chin in which a divided CAAF affirmed ACCA’s decision to ignore the appellant’s waiver and set aside multiplicitous specifications.
Further, since CAAF did not directly address whether Appellant’s TDC was ineffective for failing to properly submit his IMC request, the Court asserted that the doctrines of res judicata and collateral estoppel do not prevent their review of the issue.
2. Ineffective Assistance of Counsel The Court agreed with the DuBay military judge’s finding that “certain prior consistent statements in Appellant’s social media made a circumstantial case that [Appellant] was under the impression he could not have CPT TN as his IMC.” The Court found that since Appellant’s TDC had no reason to believe CPT TN was “not reasonably available”, TDC’s failure to route the IMC request for formal action as required was “unreasonable under prevailing professional norms.” The Court further found no abuse of discretion in the DuBay military judge’s finding that CPT TN was reasonably available to serve as Appellant’s IMC and concurred that “if forwarded properly, the IMC request would have been approved.”
3. Prejudice Article 38, UCMJ, entitles a military accused to the right to a “military counsel of his own selection if that counsel is reasonably available.” The Court determined that prejudice may be presumed when IMC is not properly forwarded or is improperly denied, citing multiple cases decided by CAAF’s predecessor, the Court of Military Appeals, and one previous case decided by this Court. The Court also distinguished this case from its opinion in United States v. Johnson, in which the Court performed a Strickland analysis and found that the appellant’s allegations that he was denied IMC were meritless. After finding Appellant’s statutory right to IMC was violated in this case, the Court presumed prejudice, considering “(1) the existence of an attorney-client relationship by a counsel who was reasonably available and wanted to represent Appellant at his court martial; (2) the fact that Appellant was effectively prevented from pursuing his IMC due to a deficiency by his own TDC; and (3) a trial in which the Government’s case was not overwhelming, but appeared to be the kind of “he said-she said” sexual assault case where the difference between conviction and acquittal often lies in the margin.”
4. Legal and Factual Sufficiency The Court declined to comment on the legal and factual sufficiency of findings in this case given that a remand for a new trial was ordered. Rather, the Court stated that “Appellant and the Government must presume we find the convictions legally and factually sufficient” because otherwise, a remand for legally or factually insufficient findings would constitute double jeopardy and be a deprivation of an appellant’s constitutional rights.
A dissenting judge argued that res judicata estops further Article 66(c) review of the issue decided by CAAF. The dissent pointed out that the majority provides no analysis regarding what it is about this particular case that requires the Court to disregard Appellant’s waiver under Article 66, which in turn “injects uncertainty about the binding effect of waivers at the trial level.”
Lastly, contrary to the majority and DuBay judge’s finding, the dissent found that CPT TN would not have been determined to be reasonably available as an IMC, and therefore Appellant could not have been prejudiced. The dissent found that the DuBay judge abused his discretion in finding that the California National Guard was CPT TN’s command, rather than the Joint Task Force-Guantanamo Bay, and noted that the staff judge advocate for JTF-GTMO declared he would have recommended denial of an IMC request had it been presented to him.
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