Outrageous prosecuting conduct leads to a reversal at NMCCA

LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.”  All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.

Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”

Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals.  Of seven assignments of error raised on appeal, the court reversed on this issue:  “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”

We find merit in the appellant’s third assignment of error. We find that his representation was adversely affected by a conflict of interest and that his convictions should be set aside under Cuyler v. Sullivan.

Separately, we also find that the undisclosed conflicts of interest in this case were stark, corrosive to the fairness of the proceedings, and resistant to a standard prejudice analysis. On the basis of our review of the entire record, we judge that the findings should not be approved. . . .

In his third assignment of error, the appellant alleges that his lead trial defense counsel had a conflict of interest, and that his trial defense counsel were ineffective. This assignment of error is factually related to his claim of prosecutorial misconduct. Because we resolve this case on grounds of ineffective assistance of counsel, we do not reach the issue of prosecutorial misconduct or the other assigned errors. But trial counsel’s actions—and defense counsel’s responses to them—are relevant to the appellant’s ineffective assistance and conflict claims. . . .

First, LtCol CT made it clear that he took personal offense at trial defense counsel’s advocacy, and that he did not like the way defense counsel were trying the case. We expect that trial counsel do not normally take defense counsel’s tactics personally. In this case, LtCol CT did, and sometimes for no apparent reason.

Regrettably, this attitude showed throughout the case, both on and off the record.

There are other examples of off-the-record exchanges that tended to aggravate the potential conflict. One occurred after a motion session while counsel were still in the courtroom. LtCol CT told Capt KC, “If [you] were [your] husband, I would punch you in the face right now.”86 Another time, while discussing a defense discovery request, LtCol CT told Capt JS, “If you were my peer, I would have told you to f*** off.