Fort Stewart court martial lawyer - 6th Amendment Right to counsel
In United States v. Wiechmann, 67 M.J. 456 (2009), the issue was whether SM was denied his 6th Amendment Right to counsel when the SJA did not accept one of the two detailed defense counsel. The court concluded that even though the convening authority violated of the SMs 6th Amendment Rights, it was harmless since LtCol [S] was continuously able to advise the SDC from the background. Even though the defendant does not have the right to more than one detailed counsel, the person authorized by regulations prescribed under section 827 of this title (Article 27) to detail counsel, in his sole discretion . . . may detail additional military counsel as assistant defense counsel. Article 38(b)(6) UCMJ. The convening authority may not interfere with or impede a lawyer-client relationship created between an accused and detailed defense counsel, which was established during LtCol [Ss] initial detail as SMs defense counsel. The court also faulted the convening authority for not seeking information from officials at the departmental level prior to refusing to recognize LtCol [S] as SMs counsel.
The court ultimately found that the convening authoritys action burdened LtCol [Ss] representation of his client in various respects: (1) the Article 32 proceeding was conducted without a full opportunity for LtCol [S] to prepare and participate; (2) LtCol [S] was excluded from pretrial disposition negotiations which the Government had with the SDC, the less experienced defense counsel; (3) LtCol [S] was unable to represent SM in pretrial procedural matters, including a scheduling conference or by requesting a continuance. Under the circumstances, the prosecutions actions violated Appellants right to the assistance of counsel.
In evaluating the case, the court looked for 1) structural error -- an error so serious that no proof of prejudice is required -- or 2) whether the error should be tested for prejudice. Finding no structural error, the court ruled that while the convening authority committed a violation of the SMs 6th Amendment Rights, it was harmless as LtCol [S] was continuously able to advise the SDC from the background.
Michael Waddington is a Fort Gordon court martial lawyer that defends military members in the Army, Air Force, Navy and Marines worldwide in court martial cases.
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