United States v. Hale
2017 CCA LEXIS 364
N.M.C.C.A.2017Background
- Appellant (Marine SSgt) convicted at general court-martial of multiple offenses including rape, kidnapping, assault with a dangerous weapon, adultery, steroid use, violating a general order; sentenced to 26 years confinement and dishonorable discharge.
- Lead defense counsel (Capt KC) was a detailed judge advocate who anticipated transferring to the prosecution region and was married to another trial counsel (Capt CC) whose reviewing officer was the lead trial counsel (LtCol CT); these relationships were not disclosed to the appellant or the court.
- During litigation LtCol CT made on- and off-record remarks showing personal animus toward defense counsel and told Capt KC she was “coming back to the government”; Capt CC later told Capt KC that if she filed certain motions he might have to request a different RO.
- Defense counsel declined to move to disqualify LtCol CT or disclose the husband/RO discussion; co-counsel and a defense highly qualified expert urged raising the issue and objecting to government argument but were often overruled or not acted upon.
- Post-trial Article 39(a) proceedings developed testimony that the conflict existed and that Capt KC’s performance was affected (she wept at counsel table, failed to disclose important facts, and refrained from some objections/motions).
- Court of Criminal Appeals (panel) applied Cuyler v. Sullivan framework, found an actual conflict that adversely affected performance, presumed prejudice, set aside findings and sentence, and authorized a rehearing.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether counsel labored under an actual conflict of interest | Capt KC had a conflict from anticipated prosecutorial transfer and her husband’s relationship to lead prosecutor, not disclosed to client/court | Any relationships were attenuated/insufficient to create an actual conflict | Yes — considering cumulative facts, an actual conflict existed |
| Whether Cuyler v. Sullivan applies to non-concurrent representation conflicts | Appellant urged presumption of prejudice under Cuyler because conflict adversely affected counsel | Govt argued Strickland rather than Cuyler should govern absent concurrent multiple representation | Court applied Cuyler where an actual conflict adversely affected performance and adopted a test requiring an actual conflict + adverse effect |
| Whether conflict adversely affected counsel’s performance (Cuyler second prong) | Capt KC’s decisions (not moving to disqualify, not objecting) and emotional breakdown show adverse effect | Govt maintained trial was fair and unconflicted co-counsel could cure errors; no specific outcome prejudice shown | Held adverse effect shown: counsel’s conduct (failure to disclose/move/object) was materially limited by the conflict |
| Remedies: whether findings/sentence must be set aside or tested under Article 66/Strickland | Appellant sought reversal based on presumed prejudice; alternatively relief under Article 66 review | Govt argued no reversible error and no prejudice under Strickland; further factfinding unnecessary | Findings and sentence set aside; rehearing authorized — court also concluded under Article 66 the record does not warrant approval of results |
Key Cases Cited
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (prejudice presumed when counsel actively represented conflicting interests that adversely affected performance)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance test: performance and prejudice)
- Mickens v. Taylor, 535 U.S. 162 (2002) (limited Cuyler application; questioned broad use of presumption outside concurrent representation)
- Wood v. Georgia, 450 U.S. 261 (1981) (right to counsel includes right to conflict-free representation)
- United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008) (military conflict precedent; ordered further factfinding on counsel conflict)
- United States v. Saintaude, 61 M.J. 175 (C.A.A.F. 2005) (case-by-case approach to potential conflicts; Strickland applied where appropriate)
- United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004) (presumed prejudice where counsel’s personal relationship created inherently prejudicial conflict)