Chief Judge Effron writes for a unanimous court.
The Judge Advocate General of the Navy certified the case to this Court for review of the following issues:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?
II. WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVYMARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL?
III. WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELL[EE]’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGH TRIAL?
Here’s the basic ruling (error but no prejudice):
For the reasons set forth below, we conclude that: (1) the first detailed military assistant defense counsel did not follow the appropriate procedures with respect to the termination of his participation in the case; (2) the record of trial does not establish a valid basis for such termination under the circumstances of this case; (3) any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to Appellee under applicable constitutional and statutory standards of law; and (4) the circumstances require return of the case to the Court of Criminal Appeals for the completion of review under Article 66, UCMJ, 10 U.S.C. § 866 (2006).
The court applied a “prejudice to the substantial rights of the accused,” not a harmless beyond reasonable doubt for constitutional error – based on the facts of this case.