Do conflicts among Marine lawyers put justice at risk?

September 7, 2011
Do conflicts among Marine lawyers put justice at risk?
By Michael Doyle | McClatchy Newspapers

WASHINGTON — Marine Corps Capt. Jonathan E. Lee lacked crucial details about his attorney's divided loyalties.

Lee faced court-martial on misconduct charges. Then his Marine defense lawyer was assigned prosecution duties on other cases, effectively making the military lawyer who was prosecuting Lee the boss.

Put bluntly: Lee's defense attorney had to decide how hard he'd challenge a prosecutor who was grading him for promotion. And Lee, to his subsequent dismay, knew little about it.

"What part of this isn't a bomb waiting to explode?" exclaimed Judge J.A. Maksym of the U.S. Navy-Marine Corps Court of Criminal Appeals.

Maksym's rhetorical question, raised during a July 1 oral argument, provokes another: How many Marines may have been shortchanged by a potentially conflicted military defense attorney?

The troubling answer is: No one knows.

"These apparent conflicts of interest expose a deeply flawed practice and raise fundamental questions of ethics and fairness," Judge E.C. Price of the Navy-Marine Corps Court of Criminal Appeals warned in a separate case in February.

This has been a uniquely military dilemma, one the Marine Corps says is getting fixed. Civilian public defenders and prosecutors always report to different bosses. Military branches, too, maintain distinct chains of command for defense and prosecution.

But for a number of years, attorneys in the Marine Corps could shift from defense to prosecution in the middle of cases and still represent their defense clients. They've never been able to defend and prosecute the same defendants simultaneously. They have, however, served as defense attorneys while adding new prosecution duties.

This simultaneous duty is "disturbingly not uncommon," the Navy-Marine Corps Court of Criminal Appeals noted in a July 28 decision. The Marine Corps has had a "pattern and practice of allowing concurrent service as a trial and defense counsel," agreed Eugene R. Fidell, a Yale Law School visiting lecturer and a co-founder of the National Institute of Military Justice, a nonprofit that educates the public about military justice.

"This is a common experience," said Fidell, who helped represent Lee on appeal, "and it's always a problem."

Babu Kaza, a major in the Marine Corps Reserves once based at North Carolina's Camp Lejeune, added, "It was common at Lejeune for prosecutors and defense counsel to switch sides midtour." Typically, Kaza said, the newly named prosecutor would have several defense cases left to wrap up after transferring.

The Marine Corps apparently is the only military service to have this policy, attorneys say. Now it may be changing.

The Marine Corps, as part of a series of changes directed by its top legal officer, Maj. Gen. Vaughn Ary, has drafted new rules to prohibit simultaneous defense and prosecution service except for tightly controlled exceptions. The proposed new rules are under internal review and will be finalized soon.

The pending "clarification of the duties, responsibilities and authorities of defense counsel ... will enhance (their) independence," the Marine Corps told McClatchy in a Sept. 1 statement.

Marine Corps Col. John G. Baker, the service's chief defense counsel, added that the service's defense attorneys are "zealous advocates for their clients and serve under the supervision of the Marine Corps Defense Services Organization, independently from their local chain of command."

"They perform their duties professionally, bound only by the law, our rules of professional responsibility and a steady moral compass," Baker said.

Sixty-two Marine Corps judge advocates serve as trial counsel, or prosecutors. Fifty-four Marine Corps judge advocates serve as defense counsel. They're busy, each handling an average of 17 cases at a time.

In fiscal year 2010, the Marine Corps completed more than 800 courts-martial.

The Marine Corps told McClatchy it doesn't maintain statistics on attorneys who've been assigned overlapping defense and prosecution duties. The number of potentially affected defendants over the years is unknowable.

For any attorney, independence is key.

The American Bar Association declared in a 1982 ethics opinion that "there is an inherent conflict between zealously representing a client and conducting oneself in a manner calculated to win the approval and favor" of the military supervising officer.

The ABA added, though, that the problem might be eased if the defendant knew of the relationship and waived objections. The military has relied on this exception.

Thus, 28 years ago, Navy enlisted man Michael K. Nicholson challenged his murder conviction in Florida on the grounds that the assistant prosecutor oversaw his defense attorney.

A military appeals court cautioned in 1983 that "this situation is wholly inimical to the appearance of integrity of the military justice system." Nonetheless, the court allowed Nicholson's conviction to stand because he'd initially waived any objections.

Lee, too, was assigned a military defense attorney, Capt. John Reh, following charges in 2004 relating to fraternization with enlisted personnel. Reh subsequently was assigned prosecution duties at Camp Lejeune. Reh told Lee he'd be handling a few routine matters. Lee assented.

"This isn't an issue. We do this all the time in the Marine Corps. Just talk to your client about the situation," an unnamed officer told Reh at the time, according to a subsequent court inquiry.

But as the inquiry later determined, Reh became immersed in prosecution duties. He had an office in the prosecution section. The prosecutor prepared his fitness report.

Lee didn't learn everything until after his May 2005 conviction. Even then, his discovery came by chance, when he read about Reh's work prosecuting a murder case in North Carolina.

It's "a stain on our system that makes it appear illegitimate, unjust and unfairly stacked against the defendant," Baker, one of Lee's appellate attorneys, declared during the July 1 oral argument.

The Navy-Marine Corps Court of Criminal Appeals agreed July 28.

The court concluded that Lee wasn't fully notified of the defense and prosecution links. Though judges said they saw no evidence that Reh's legal work was sub-par, they were troubled that Lee couldn't properly evaluate the potential for conflict.

"The system failed" Lee, the court ruled, setting aside his conviction.

Lee and Reh declined to comment. The military has until Friday to decide whether it will file a request for review by a higher appellate court.

Robin A. Stagner thinks the system failed him, too. Unfortunately for him, the system disagrees.

Stagner was a Marine lance corporal accused in 2006 of aggravated assault. His military defense attorney then received new prosecution duties. His reviewing officer was Stagner's assistant prosecutor. Stagner said he'd nonetheless keep his defense attorney because he knew the case.

"I prefer him," Stagner declared, a hearing transcript shows.

The young enlisted man had second thoughts after his conviction. It was too late.

The reporting relationship between Stagner's defense attorney and prosecutor presented a "troubling image," the Navy-Marine Corps Court of Criminal Appeals acknowledged last February. The court nonetheless dismissed Stagner's appeal.

The court's majority reasoned that simultaneous defense and prosecution duties were a problem only if the attorney's performance demonstrably suffers or the defendant lacks information to reasonably decide about retaining the attorney.

"Military jurisprudence has for some time declined to consider a command relationship between opposing counsel to be prejudicial per se," the court's majority noted.

In response, the court's Judge Price cautioned that the potential conflict "inevitably undermines both confidence in and the appearance of fairness in our system of justice."

With its pending new rules, the Marine Corps seems to agree.

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