70 M.J. 535
NMCCA2011Background
- Appellant Lee was convicted by a general court-martial of burglary, conduct unbecoming an officer and a gentleman, fraternization, and indecent assault under UCMJ Articles 129, 133, and 134; CA approved a 3-year confinement, forfeiture of pay, and a dismissal from the Marine Corps; the court set aside two findings (Article 133 and one indecent assault specification) but affirmed the rest and the post-trial sentence after reassessment.
- DuBay conflict: defense counsel Capt Reh moved from defense to prosecution duties mid-case; Maj Keane prosecuted; Disclosures of potential conflict were incomplete or not adequately communicated to the military judge.
- DuBay proceedings were convened; credibility weighed against the appellant; witnesses’ accounts were inconsistent and records were imperfect due to time and lost files.
- The Court of Appeals for the Armed Forces directed a DuBay hearing and further Article 66 review; the record showed systemic failure to disclose and manage conflicts, including lack of timely notice to the military judge.
- The majority ultimately vacated findings and the sentence, ordered a rehearing on all charges except Charge II and its related indecent assault spec.; the court acknowledged the need for prophylaxis to protect rights to counsel and due process.
- The court reaffirmed de novo Article 66 review authority and rejected that the conflict was structural per se; it held the system failed Lee but authorized rehearing for all issues except the specified charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict of interest improper representation | Lee asserts ineffective assistance due to the conflicted defense/prosecution arrangement | United States contends no prejudice shown; waiver or lack of demonstrable harm | Remedy: relief under Article 66; not automatic reversal; prejudice not clearly shown yet system failed |
| Whether conflict constitutes structural error | Lee argues structural error requiring automatic reversal | Government argues no structural error; may be waivable | Not automatic; court leans toward structural error analysis but sets aside findings for prophylaxis rather than per se reversal |
| Waiver of conflict-free counsel | Lee did not knowingly/intelligently waive conflict-free representation | Defense informed; waiver possible | Waiver not proven intelligently; need for protective measures and judge inquiry |
| Appropriate remedy under Article 66 | Remedy necessary to protect rights due to systemic failures | Remedy limited to addressing prejudice | Findings and sentence set aside; rehearing authorized on most charges |
| Impact of command/prosecution relationship on trial fairness | Interlocking roles compromised fairness | No per se prejudice shown; issues remain fact-bound | Remedy via Article 66 review and potential procedural reforms rather than outright acquittal |
Key Cases Cited
- United States v. Cronic, 466 U.S. 648 (1984) (counsel's ineffective performance presumed when no counsel at all or total denial of meaningful counsel)
- Sullivan v. Holloway, 446 U.S. 335 (1980) (actual conflict required to demonstrate prejudice; automatic reversal not always warranted)
- Holloway v. Arkansas, 435 U.S. 475 (1978) (automatic reversal for conflicting interests when raised timely)
- Mickens v. Taylor, 535 U.S. 162 (2002) (adverse effect required; no automatic reversal for potential conflict)
- United States v. Hubbard, 43 C.M.R. 322 (1971) (command relationship not per se prejudicial; analysis depends on facts)
- United States v. Nicholson, 15 M.J. 436 (1983) (no per se prejudice; requires inquiry into conflict)
- United States v. Whidbee, 28 M.J. 823 (1989) (heavy burden to prove voluntary waiver of conflict-free counsel; considering defense structure)
- Garcia v. Bunnell, 33 F.3d 1193 (9th Cir. 1994) (colloquy on conflict-free counsel; waiver lacking here)
- United States v. Biagase, 50 M.J. 143 (1999) (judge may fashion remedies to protect rights when conflict existed)
- United States v. Gore, 60 M.J. 178 (2004) (judge's powers to remedy conflict situations in defense)
- United States v. Cole, 31 M.J. 270 (1990) (de novo review power to protect accused rights)
- United States v. Claxton, 32 M.J. 159 (1991) (articulates broader review for justice in military system)
- United States v. Dupas, 14 M.J. 28 (1982) (privilege considerations under Rule 502 and related matters)
- United States v. Collazo, 53 M.J. 721 (2000) (Article 66 relief possibilities when legal error non-prejudicial)
- United States v. Hutchins, 69 M.J. 282 (2011) (structural error not per se; counseling structure considerations)