Lead Opinion
Opinion of the Court
1. A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to distribute cocaine and wrongfully distributing cocaine (2 specifications), in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 USC §§ 881 and 912a, respectively. The approved sentence provides for a bad-conduct discharge, confinement for 4 years and 6 months, total forfeitures, and reduction to the lowest enlisted grade.
3. This Court granted review of the following issue:
WHETHER IN THE ABSENCE OF COMPETENT EVIDENCE TO THE CONTRARY, THE ARMY COURT OF MILITARY REVIEW ERRED BY NOT HOLDING THAT TRIAL DEFENSE COUNSEL WERE INEFFECTIVE AFTER DETERMINING THAT APPELLANT RAISED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AGAINST HIS TRIAL DEFENSE COUNSEL.
We also specified the following issue:
WHAT ARE THE OBLIGATIONS OF THE TRIAL DEFENSE COUNSEL WHEN THE ACCUSED CHALLENGES HIS REPRESENTATION AS INEFFECTIVE?
4. After consideration of the briefs and oral arguments of appellate counsel and amicus curiae, we hold that the Court of Military Review did not err. Concerning the specified issue, we hold that both military and civilian defense counsel properly discharged their duties in this case.
5. Appellant argues that he met the first prong of Strickland v. Washington,
6. The Government argues that the Army court’s use of the term “prima facie case” meant only that appellant’s affidavits had raised a colorable claim of ineffective assistance that warranted further inquiry. Answer to Final Brief at 6. They argue further that failure of defense counsel to submit affidavits does not establish ineffectiveness of counsel, because a court could still find that appellant had not carried his burden of proof and overcome the presumption of competence. Id. at 10-11.
7. Amicus curiae focus their argument on the procedures set out by the Army court in United States v. Burdine,
8. The linchpin of appellant’s argument is the Army court’s determination that “appellant’s affidavits contained sufficient information to establish a prima fade case of ineffectiveness as to nine specific allegations.”
9. We reject appellant’s argument for two reasons. First, it is clear from the Army court’s opinion that they used the term “prima facie case” to mean only a colorable claim warranting further inquiry. Second, affidavits are not the only means of evaluating an assertion of ineffectiveness; in many cases review of the record itself is sufficient. See United States v. McGillis,
10. The question remains whether the Army court erred by treating defense counsel’s motion as the “functional equivalent” of an affidavit. We hold that it was error, but the error was not sufficient to taint the Army court’s holding that appellant had not overcome the presumption of competence.
11. Generally speaking, factual assertions in motions are not evidence. Counsel are ethically required to be candid with the courts when they make factual assertions. See, e.g., Rule 3.3(a)(1), Candor Toward the Tribunal, Army Regulation 27-26, Rules of Professional Conduct for Lawyers (“A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal.”). Filing a motion containing factual assertions, however, does not satisfy a duty to produce evidence. Cf. Kelly v. United States,
12. Turning to the motion itself, we observe that it primarily contains argument. Most of the factual assertions in the motion repeat evidence contained in the record of trial or in documents submitted by appellant. Accordingly, any error in treating the motion as an affidavit was harmless. Art. 59(a), UCMJ, 10 USC § 859(a).
13. We agree with the Army court’s disposition of eight of appellant’s nine specific allegations against his defense counsel, including his assertion of a conflict of interest. One allegation, however, requires further comment. Appellant asserts that Major Olgin refused to submit his handwritten clemency letter to the convening authority. The Army court accepted MAJ Olgin’s explanation set out in both his motion and appellant’s affidavit — that he did not submit the handwritten letter because he did not consider it “appropriate.”
14. Appellant attached a handwritten letter to his affidavit and asserts that it is the same letter which MAJ Olgin refused to submit to the convening authority. The letter asks for clemency for appellant’s wife and daughter. It recites verbatim: “Theres no way possible she can survive with the amount of bills we have.” The letter also asserts, “I know I have been used and I know the system wasn’t fair. All I ask is that my family have a chance.”
15. MAJ Olgin’s judgment about the inappropriateness of the letter may well have been correct, but counsel do not have the authority unilaterally to refuse to submit matters which the client desires to submit. Counsel’s duty is to advise, but the final decision as to what, if anything, to submit rests with the accused. See RCM 1106(f)(1), Manual for Courts-Martial, United States, 1984 (“A separate copy [of the post-trial recommendation] will be served on the accused.”); RCM 1105(a) and (d) (accused may
16. Nevertheless, we hold that appellant was not prejudiced. Appellant’s blanket assertion of unfairness might have worked to his detriment. MAJ Olgin’s submission made the same point in a more appropriate manner and was supported by a clemency letter from appellant’s wife, an Army sergeant, reciting the financial distress placed on her and their 7-year-old child. Thus, appellant may have been helped, and undoubtedly was not harmed, by MAJ Olgin’s refusal to submit the handwritten clemency letter.
17. We turn next to the question whether the actions taken by counsel for both sides during the appellate review of this case were proper. An appellant’s assertion that his counsel were ineffective waives the attorney-client privilege “as to matters reasonably related to that” assertion. United States v. Dupas,
18. In United States v. Burdine,
19. Appellant argues that his defense counsel should have been required to comply with the Burdine procedures. Amicus curiae argue that the Burdine procedures turn the presumption of competence of counsel on its head by requiring defense counsel to justify their actions by providing an explanatory affidavit before a judicial determination that appellant has produced sufficient evidence to overcome the presumption of competence. Amicus curiae ask this Court to repudiate Burdine.
20. The first question is whether the Court of Military Review had authority to compel the production of evidence. Contrary to the arguments of trial defense counsel in this ease, we hold that it did. See United States v. Dupas,
21. The next question is whether it was proper for government appellate counsel to request affidavits from trial defense counsel. We have some misgivings about that procedure. See United States v. Dupas,
22. We are reluctant to mandate procedures for the Courts of Military Review (CMR) (now named the Courts of Criminal Appeals). See, e.g., United States v. Loving,
23. We agree with amicus curiae that application of the Burdine procedures in this case resulted in a premature request for affidavits from trial defense counsel. No harm was done, however, because trial defense counsel declined to provide affidavits.
24. Because an allegation of ineffectiveness of counsel waives the attorney-client privilege as to matters reasonably related to that allegation, trial defense counsel may choose to voluntarily respond to the allegation. In our view, however, trial defense counsel should not be compelled to justify their actions until a court of competent jurisdiction reviews the allegation of ineffectiveness and the government response, examines the record, and determines that the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence. See United States v. McGillis,
25. We also reject the suggestion of trial defense counsel and amicus curiae that evidence on the issue of ineffectiveness of counsel may only be obtained at a factfinding hearing convened pursuant to United States v. DuBay,
The decision of the United States Army Court of Military Review is affirmed.
Notes
See
Concurrence Opinion
(concurring):
26. The question whether affidavits should be ordered from defense counsel with respect to an appellant’s ineffective-assistance-of-counsel claim is now entrusted to
27. I also agree that the decision to order a proceeding under United States v. DuBay,
28. Finally, I do not read the Opinion of the Court as creating carte blanche authority for the Courts of Criminal Appeals to excuse defense counsel from responding to these claims based on Article 31, UCMJ, 10 USC § 831. The court below said:
In summary, we have authority to order trial defense counsel to file affidavits in response to post-trial allegations of ineffectiveness lodged against them in the course of an appeal. As the highest tribunal in the Army, we have a responsibility to ensure that the military criminal justice system functions in a manner that not only protects the rights of the accused but also operates efficiently. It is clear that we may compel trial judges and government officials to comply with our orders when warranted. It would be anomalous if we could not also compel trial defense counsel to comply with reasonable rules of practice when necessary to resolve a material issue in a case. The requirement that trial defense counsel file a rebuttal affidavit where a colorable claim of ineffective assistance of counsel has been made is such a reasonable rule of practice. We acknowledge that counsel may initially refuse to comply with an order from this court provided they have a sound reason for doing so and assert such reason to us as a basis for their refusal in an appropriate response to our order. United States v. Ruiz,23 USCMA 181 ,48 CMR 797 (1974); see Dupas,14 MJ at 31 n. 7; United States v. Ingham,36 MJ 990 (ACMR 1993). However, if their asserted basis for disobeying the order is not justifiable, they risk disciplinary action for their disobedience. United States v. Smith,4 MJ 210 (CMA 1978). In this case, the reasons asserted by the movants are insufficient to justify their refusal to comply with our order.