The NMCCA decided United States v. Adad, a case in which Appellant submitted no errors. The court itself identified two issues one of which we should talk about: that “the trial defense counsel argued for a bad-conduct discharge [BCD] without making a sufficient record that such advocacy was pursuant to Appellant’s wishes.”
During his sentencing argument, the defense counsel explicitly asked the military judge to “give [Appellant] eighteen months of confinement and a bad-conduct discharge.” The defense counsel also made several similar statements including, “[Appellant’s] place is not in the Navy anymore,”6 and “we agree a punitive discharge is the right way to go . . . .”
In the Navy we call this a “BCD striker” case. The court acknowledges a likely tactical move but, “Nevertheless, where defense counsel argues for “a punitive discharge, even as a tactical step to accomplish mitigation of other elements of a possible sentence[,] counsel must make a record that such advocacy is pursuant to the accused’s wishes.”
The court concludes on a point with which I disagree, “despite defense counsel’s explicit argument for a BCD, the record is silent regarding Appellant’s wishes concerning imposition of a punitive discharge. That is error.” To me this is not error unless the appellant raises it and proves it—which in this case he did not.
*A Navy bootcamp graduate who goes to a command without attending “A” School (AFSC, AIT, MOS) training for a particular rating (job skill), may, once they report to their command begin a process of on-the-job training and specialization for a rating—striking for the quartermaster rating perhaps.
That the record must show that an accused agrees with an argument for a punitive discharge is to me inappropriate. (Note, the court did not order defense counsel to produce evidence documenting the Appellant’s expressed desire—why not if they were concerned?) It is my view that requiring record evidence essentially intrudes on the attorney-client relationship and effectively questions the performance of trial defense counsel (and here the appellate defense counsel) on the record and in the presence of the client. Appellants occasionally claiming they were not advised prior to argument of the consequence of striking is not by itself a justification for requiring evidence on the record. See, e.g. United States v. McNally, 16 M.J. 32 (C.M.A. 1983). It is not sufficient “so that issues of this nature will be nonexistent on appeal.”
United States v. Butts, 25 M.J. 535, 538 (A.C.M.R. 1987). How many times have we read that the law presumes counsel to be competent absent a showing by the appellant of professional error and prejudice? See, e.g., United States v. Carter, 79 M.J. 478, 480 (C.A.A.F. 2020) citing to United States v. Captain, 75 M.J. 99 (C.A.A.F. 2016); United States v. Cooper, No. 201500039, 2020 CCA LEXIS 440 (N-M Ct. Crim. App. Dec. 10, 2020) (unpub.).
Here might be a cautionary tale.
Of course, since defense counsel was performing his duties in a way which the trial judge would logically have assumed was in appellant's best interests, the judge had no obligation to stop the trial in order to interrogate appellant and his counsel as to whether the argument had been authorized by the client. To do so would have interrupted the flow of the argument and probably would have lessened its impact on the members and its value to appellant. Moreover, asking appellant to decide whether defense counsel had made the very best tactical choice in arguing on an appropriate sentence would seem to be a fruitless exercise. Indeed, in such an inquiry, how far would the defense counsel have to go in spreading on the record his analysis of the probable reactions of court members to various possible arguments?
United States v. Volmar, 15 M.J. 339, 343-44 (C.M.A. 1983). Or,
No decisional authority requires a military judge in every case in which the accused requests a punitive discharge to question the accused at length about his understanding of the myriad of consequences that flow from receipt of the punitive discharge. Generally, if trial defense counsel argues that a punitive discharge is appropriate, the military judge must question the accused if it appears that this concession does not comport with the accused's desires or the accused does not understand the ramifications of it. This questioning need not be extensive. In cases in which the award of a punitive discharge is virtually certain and it appears that defense counsel's concession in argument is patently reasonable, no inquiry by the military judge is required even if the accused has not affirmatively stated his desire for a punitive discharge. Certainly, the better practice in this latter eventuality is for the military judge to conduct a brief inquiry to ensure that the accused agrees with his counsel's concession.
United States v. Evans, 35 M.J. 754, 758-59 (N-M.C.M.R. 1992) (citations omitted) (emphasis added). The court went further in Evans,
Before the military judge began his questioning in this case, appellant had already stated that he understood the long-term effects of requesting a bad-conduct discharge. Defense counsel is presumed in the absence of evidence to the contrary to have fulfilled his duty to fully advise his client regarding all important aspects of the trial.
Id., at 759.
So having ranted, just what is the Blunk defense. In 1980 I was taught two things about strikers--persuade them not to do it and if they persist get it in writing. Let me quote extensively from United States v. Blunk, 37 C.M.R. 422, 424-25 (U.S.C.M.A. 1967).
(Note, if you go here--https://cite.case.law/#us--you can get many prior military cases online without needing a paid account like Lexis or Westlaw.)
[D]efense counsel frequently finds himself still enmeshed in a dilemma [with a striker]. Having followed the accused's instructions and faithfully implemented his desires, he is frequently confronted at the appellate level with an affidavit from his client -- who suddenly aware of the consequences of his sentence -- now avers that his attorney deserted him at the trial by offering nothing on his behalf. The same situation may, indeed, arise on the basis of allegations by appellate defense counsel on the basis of simple absence of evidence from the record, quite without regard to what actually took place between the trial attorney and his client below.
Voilá, the Blunk defense and why I believe it neither proper nor necessary to have the client's desire to strike for a punitive discharge regularly put on the record. Do you have a Blunk Letter in your file?
Oh-by-the-way, why discourage striking? Well we experienced military judges who gave confinement or more confinement to strikers than they might of done otherwise because they heard the client say a punitive discharge was not a severe punishment. Blunk got his BCD and six.
This then is how Fireman Recruit Blunt is more notorious than his UA would suggest and he found his name to be a defense counsel defense.
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