Beruflich Dokumente
Kultur Dokumente
Counsel
For Appellant: Captain Craig A. Harbaugh (argued); Colonel
Robert E. Teetsel, Lieutenant Colonel E. Allen Chandler,
Jr., Major Imogene M. Jamison (on brief); Colonel Adele H.
Odegard, Captain Brian S. Heslin and Captain Sean S. Park.
For Appellee: Captain Christopher Graveline (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines and
Major Jennifer H. McGee (on brief).
Military Judge:
Donna M. Wright
The military
I. BACKGROUND
At the close of the prosecution's case, defense counsel
made a series of motions for findings of not guilty on nine of
the twelve specifications.
Argument was heard in this case at the Suffolk University School of Law,
Boston, Mass., as part of this Court's Project Outreach. See United States
v. Mahoney, __ M.J. __, __ n.1.(C.A.A.F. 2003).
After an
Yes, ma'am.
Yes, ma'am.
Yes, ma'am.
Yes, ma'am.
The military judge did not indicate when she had engaged in
a discussion with defense counsel regarding their desire to be
off the case.
Yes, ma'am.
Military Judge:
true for you?
Cpt [M]:
Yes, ma'am.
Yes, ma'am.
Yes.
Yes, ma'am.
Yes.
Yes, ma'am.
After a fifteen-
10
At
Contrary to the
Both
The
11
II. DISCUSSION
This appeal concerns the Sixth Amendment right to the
effective assistance of counsel.
Appellant
1.
Competing interests
When circumstances indicate that an accused may commit
In addition to the
12
See,
See
13
2.1.
(7) The related ethical duty of an attorney to withdraw if
a client persists in a fraudulent or criminal course of conduct.
See AR 27-26, Rule 1.16, 3.3, cmt.; ABA Model Rule 1.16.
(8) The rules governing impeachment and rebuttal.
See,
e.g., M.R.E. 608, 609, 613; Nix, 475 U.S. at 173; United States
v. Havens, 446 U.S. 620 (1980); Harris, 401 U.S. at 225-26.
2.
Procedural considerations
The initial actions taken by a competent defense counsel in
14
Development 2001:
See Hall,
15
Despite substantial
16
Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (an attorney
must possess a firm factual basis that the client will commit
perjury before bringing the matter to the attention of the
court), with Shockley v. State, 565 A.2d 1373 (Del. 1989) (the
attorney must be convinced that the statement is false beyond a
reasonable doubt).
supra, at 947-54.
Under
17
Therefore, the
v. Long, 857 F.2d 436, 446 n.7 (8th Cir. 1988); Hall, supra, at
835.
A third view is that the free narrative approach violates
attorney-client confidentiality because the unusual format of
the testimony signals to the judge or jury that the client is
not telling the truth.
18
3.
The details
19
(5) What
(7) What
20
4.
Future cases
Given the state of the record in this case, we do not view
problems facing counsel and courts and the need for greater
clarity).
21
At the ex parte
22
If, after
See,
23
III. DECISION
The decision of the United States Army Court of Criminal Appeals
is set aside.
The
24
See
Appellants allegation of
___
M.J. (24).
The Supreme Court has long recognized that [a]ll perjured
relevant testimony is at war with justice, since it may produce
a judgment not resting on truth.
truth finding and a defendant does not have the right to present
perjuried testimony.
(1986).
This
Yes, maam.
MILITARY JUDGE: Just based on the fact that they want off the case,
thats the reason I think it is.
What Im tellin you is this, that -Captain [B], am I right? Is the court right that you do not even feel
that you can ethically put your client on the stand and not even ask him any
questions, and just --?
CPT [B]:
MILITARY JUDGE:
Because
United States v.
In rendering our
Id.
In Strickland, the
CPT [M]:
Yes, maam.
(Emphasis added.)
added).
In Nix, the Court determined that counsels threat to
withdraw if the defendant perjured himself did not establish
the prejudice required for relief under the second strand of the
Strickland inquiry.
Id. at
173-74.
In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Court
again interpreted Strickland, opining that testing for prejudice
involves more than a determination that the outcome would have
been different.
Id. at 372.
Id.
Id. at 369-70.
As the
Spec
Plea
Finding
Attempted larceny
only
NG
Guilty
II
1
2
3
4
NG
NG
NG
NG
NG
Guilty
NG
NG
III
Willful disobedience
1
2
3
NG
NG
NG
NG
Guilty
Guilty
IV
Willful disobedience
1
2
NG
NG
NG
NG
Dereliction of duty
only
NG
NG
VI
Larceny
only
NG
NG
When buying
When these
not to buy any more, MSG Hyde noticed that three more cartridges
were bought.
Charge II, specification 2 -- absences.
Appellants
he never took the [normal] one hour lunch, but, rather, threehour lunches.
extended breaks.
He was
A third order
checked the two barbershops at Patch Barracks and did not find
Appellant on either occasion.
His
Accordingly, I