United States v. Khan ( 2015 )

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman HUSEIN G. KHAN
United States Air Force
Misc. Dkt. No 2015-03
24 August 2015
Appellate Counsel for the Petitioner: Philip D. Cave (civilian counsel).
Appellate Counsel for the United States: Major Mary Ellen Payne and
Gerald R. Bruce, Esquire.
Before
HECKER, ALLRED, and BROWN
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
HECKER, Senior Judge:
The petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of
Mandamus and/or Prohibition, as well as a stay of his pending court-martial.1 We deny
his petition and we also deny as moot his motion for a stay.
Procedural Background
On 3 June 2014, charges were referred alleging the petitioner committed sexual
assault against a female airman and made a false official statement, in violation of
Articles 120 and 107, UCMJ, 10 U.S.C. §§ 920, 907. At the opening court session on
23 February 2015, the petitioner was represented by a civilian attorney and a military
attorney.2
1
Petitioner filed the motion for a stay on 5 June 2015 and a supplement on 8 June 2015.
2
A different military attorney was detailed to represent the petitioner after the preferral of charges. That attorney
represented the appellant through the Article 32, UCMJ, investigation but subsequently separated from active duty
The petitioner pled not guilty and elected trial before members. The first witness
for the government was the alleged victim of the Article 120, UCMJ, charges. After the
defense completed its cross-examination, several Article 39(a), UCMJ, 10 U.S.C. §
839(a), sessions were held.
During the final session, the petitioner released both defense counsel and the case
was continued until new counsel could be appointed. A successor military attorney was
detailed and the appellant retained a new civilian attorney.
On 24 April 2015, the military judge heard motions from successor counsel,
asking her to dismiss the charges, order a mistrial, recuse herself and recuse the panel, as
described further below. She denied all the motions, other than the motion to dismiss
charges for “deprivation of counsel of choice.” She initially deferred ruling on that
motion, and then denied it on 1 May 2015.
The appellant filed a writ with this court on 8 May 2015, raising three issues:
I. Petitioner released his military and civilian defense
counsel in the midst of trial. Did the actions of the
military judge create a conflict within the defense team
which then caused Petitioner to release his counsel? If
so, did she deprive Petitioner of his counsel of choice;
and did she further err in failing to dismiss the charges
for a deprivation of counsel of choice?
II. Petitioner released his military and civilian defense
counsel in the midst of trial, based on questions and
comments made on the record by the military judge.
Did the military judge abuse her discretion in then
denying subsequent requests and a motion to recuse
herself from hearing and deciding the motions and
continuing to sit as the trial judge?
III. Petitioner released his military and civilian defense
counsel in the midst of trial, based on questions and
comments made on the record by the military judge. Did
the military judge abuse her discretion in denying a
subsequent motion to declare a mistrial?
Through this writ, the petitioner asks this court to (1) issue a writ of prohibition
barring further prosecution of the case based on interference with his counsel of choice,
and the petitioner released him from further representation. A new military attorney was detailed to represent the
petitioner in September 2014. The petitioner also retained a civilian attorney on 28 April 2014.
2 Misc. Dkt. No. 2015-03
and (2) issue a writ of mandamus ordering recusal of the military judge and a mistrial.
The government opposed the petitioner’s request for extraordinary relief.
Facts
The circumstances leading to this writ first arose during an Article 39(a), UCMJ,
session on 26 February 2015, the day after the alleged victim’s testimony during the
government’s case. Until that morning, the trial counsel had intended to offer into
evidence a recording of a pretext call made by the alleged victim to the petitioner. The
military judge had previously ruled that portions of that recording were inadmissible
under Mil. R. Evid. 412. To that end, the defense had spent several hours attempting to
prepare a redacted version of the phone call.3
At the Article 39(a), UCMJ, session on 26 February 2015, however, the trial
counsel announced the government no longer intended to offer the pretext phone
conversation recording into evidence and would instead call a military investigator to
testify about statements made during the pretext call. The civilian attorney indicated the
defense did not yet have a position on whether it objected to this plan. The trial counsel
asked for a 10-minute recess, after which the agent would testify about the pretext call.
The following exchange then occurred:
DC: Judge, with all due respect, . . . we have a reasonable
expectation of taking the government when they say
they’re going to put a piece of evidence in their case.
We spent last night, hours, working on a redaction of the
pretext phone call. We walk in this morning, the
government says well now we’re not going to put on the
pretext phone call. . . . I have a reasonable expectation
of being able to rely on what my opposing counsel tells
me. Ten minutes is not enough time to adjust fire to
that. It’s just not. It’s not fair to my client. We need a
chance then, okay. We were operating under the
premise that there’s going to be a pretext phone call.
We’re all working towards a 95 percent solution. I
thought we had a 95 percent solution. Ten minutes . . .
is not enough time for me to be able to say okay this is
good or this is not good. We’re getting to the point
where, you know, much like with the Ambien issue a
couple of days ago where Ambien was the big issue in
the case. Now Ambien is not an issue in the case. I
mean we’re getting to the point where my client is not
getting a fair trial [i]n our opinion, with all due respect.
3
Similar efforts were underway regarding a videotape of the appellant’s statement to military investigators.
3 Misc. Dkt. No. 2015-03
MJ: Well, it sounds like if he’s not, it’s because –
TC: Your Honor, can I say something?
MJ: Before I do?
TC: Yes, Your Honor.
MJ: Go ahead.
TC: Your Honor, the government also spent hours last night
figuring out whether and how we’re going to put in a
pretext phone call. We’re certainly allowed to change
gears and decide what evidence we want to put on or not
put on at any point. The question is simply whether the
defense has an objection to our method of proof.
MJ: This is what I see. You guys have discovery. You have
notice of witnesses. You know what potential evidence
there is and that you both should be prepared to adjust
for changes in those things. This isn’t something new.
The pretext [call] is out there. They’ve chosen a
different way to put it in. I don’t understand why it
would take a long time for you to be able to adjust to the
government changing their presentation of evidence.
DC: Because it affects the way that we are going to otherwise
approach the case, potentially. It may not take this long.
MJ: That’s what happens in litigation.
DC: I understand that, Judge. And if the fault’s on me, then
fine, the fault’s on me. But my client deserves a fair
trial and we’re getting close to the point of where,
respectfully, I don’t think he’s getting one.
MJ: Because of IAC?
DC: If that’s the issue, Judge, then you know --
MJ: Well, I’m asking you?
4 Misc. Dkt. No. 2015-03
DC: I don’t know what the issue is, Judge. But, I mean,
we’ve got a 412 ruling that says all this stuff is coming
in and now we’re being told well, maybe it’s not going
to come in. I’ve got [the] government telling me
Ambien is the nature of this case. No, Ambien is not the
nature of the case. . . . [Y]es, we have prepared a case.
We prepared a case based on what we reasonably
expected was going to come into evidence in this case.
That’s not what’s happening. I’m not saying that that
doesn’t happen in trials. I understand that happens in
trials. But we’re putting in eighteen hour days since
Saturday to give our client the best defense possible and
we need some time to adjust fire now that things have
changed a little bit. It’s not my fault that the
government didn’t come into court with a video ready to
go. . . . The government is the one who puts in the
video. The government then says we object to your
[Mil. R. Evid.] 412 motion. Okay. Then we should
have walked into court on Monday or Tuesday with a
video with [the Mil. R. Evid.] 412 portions redacted; a
couple of different versions. That’s not unreasonable.
That’s not on us. That’s not why this case is being
delayed the way it is. So an extra few minutes for my
client when he’s got everything in the world on the line,
I don’t believe is unreasonable.
MJ: Well, I don’t agree that that’s how the [Mil. R. Evid.]
412 and the video played out. In fact, I think your
co-counsel admitted that you all failed to argue --
DC: On one portion.
MJ: -- the redaction of the video in your [Mil. R. Evid.] 412
motion; especially when I asked how is this going to
come in. So how much of a continuance would you
like?
DC: Thirty minutes, Judge.
MJ: All right. . . . So where it stands now is that the defense
has requested a recess for thirty minutes before the
government can continue its case. I’ll take those thirty
minutes to decide on [the admission of] the video. I’m
not sending the members away. We’re going to
5 Misc. Dkt. No. 2015-03
continue with them, at least through this next witness
and then take a break. The video, if any, will be after
the lunch break. And it might be an extended lunch
break based on the editing.
The court-martial did not reconvene after that recess. Instead, several Rule for
Courts-Martial (R.C.M.) 802 conferences were held where the parties and military judge
discussed the petitioner’s desire to release his defense counsel and a potential
continuance in the court proceedings.4
Later that day, an Article 39(a), UCMJ, session was convened. The military judge
asked the petitioner whether he wanted to release his counsel. The petitioner said yes
and, when asked why, responded: “Well, ma’am, based on what was discussed during
this case and prior work that had been done during this case . . . I don’t feel like they can
adequately represent me.”
In response, the military judge informed the parties that the prior evening she had
told a fellow trial judge that the civilian attorney was among the best civilian defense
counsel she had seen and that she still believed that to be true. She also relayed that
“nothing that I saw . . . gives me pause about . . . either defense counsel’s representation
of the accused in this case.” Although she “may bark and cause counsel to provide me
more explanation about things,” the military judge reminded the defense counsel that she
had given the defense additional time to prepare its response to the government’s change
in strategy even though she “may not have liked it and . . . may have shown that on the
record . . . .” Based on what she had observed during the trial proceedings, the military
judge told the petitioner she had not seen anything that would lead her to believe either
defense counsel “have been anything other than fully effective.” She recognized,
however, that she did not know everything the petitioner knew about his counsel and
their preparation.
The petitioner said his decision to release the two counsel was voluntary and that it
was his own decision. The government did not oppose the appellant’s request. The
military judge granted the appellant’s request, with the military defense counsel’s release
becoming effective upon the detailing of a new military counsel. She then continued the
case.
On 24 April 2015, the military judge convened an Article 39(a), UCMJ, session to
address the successor defense counsel’s motions asking that she dismiss the charges due
to improper interference with the petitioner’s right to counsel of choice, and a dual
motion requesting a mistrial and recusal of the military judge. The petitioner told the
military judge he understood his right to counsel and desired to be represented by his
successor military and civilian counsel.
4
The parties did not describe the substance of these discussions when they went back on the record following the
R.C.M. 802 session.
6 Misc. Dkt. No. 2015-03
At the beginning of the session, the defense asked the military judge to recuse
herself from hearing and deciding the pending motions due to the potential for actual and
implied bias. She denied that request, stating that an outside observer would not question
her ability to be impartial, that she would recuse herself if she could not act impartially,
and that she was indeed impartial and would follow the law.
As this hearing, the petitioner testified that he believed the military judge was
treating the defense and government counsel differently. He felt the military judge had
more questions for his lawyers than for the government and was being more critical of
them while giving more leeway to the government when the trial counsel made mistakes.
He also noted the military judge had expressed frustration with the case taking too long.
Based on what he was seeing, the petitioner began to have concerns about whether he
was going to have a fair trial.
The petitioner testified that he heard the military judge use the acronym “IAC”
and thought it had something to do with racial or ethnic discrimination. 5 According to
the petitioner, the military defense counsel appeared shocked upon hearing the military
judge’s comment and the civilian attorney looked frustrated and upset.
According to the petitioner, when the defense met privately during the recess after
this exchange in court, the military defense counsel appeared to be uncertain about what
to do next. The civilian attorney explained that “IAC” was a term that stood for
inadequate counsel and that the civilian attorney interpreted this to mean that the military
judge believed the defense counsel were not performing their duties as they should and
were inadequate. He told the petitioner it was unusual for a military judge to question the
effectiveness of counsel on the record and that what had occurred was a “legal unicorn.”
The petitioner testified that the civilian attorney was sad about being in the courtroom
and that the civilian attorney thought maybe he was getting too old to practice law.6
The petitioner testified that, upon hearing this, he was starting to feel even more
concerned about the fairness of his trial. After watching what happened and seeing how
his attorneys reacted to it, he did not have any more confidence in them and he was
scared, given the effect the case could have on his future. This led him to release the two
attorneys from further representation.
Because his testimony indicated he thought the military judge had been hard on
the defense and generally questioned the defense counsel’s competence, the defense
renewed its request that she recuse herself based on implied bias since, in the defense’s
view, this testimony made the issue a personal one between the petitioner and the judge.
She denied the defense request, as well as the defense motion for a mistrial.
5
There had been extensive discussion during voir dire about whether the government’s exercise of a peremptory
challenge was in compliance with Batson v. Kentucky, 476 U.S. 79 (1986).
6
The petitioner also testified that he did not remember his civilian attorney telling the military judge he was not
getting a fair trial and did not recall him explaining why he made those comments.
7 Misc. Dkt. No. 2015-03
Approximately a week later, she issued a written ruling denying the motion to dismiss the
charges. The petitioner then filed the instant writ regarding the military judge’s denial of
the motions.
Discussion
The All Writs Act, 28 U.S.C. § 1651(a), authorizes “all courts established by Act
of Congress [to] issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” This court is among the
courts authorized under the All Writs Act to issue “all writs necessary or appropriate in
aid of their respective jurisdictions.” 28 U.S.C. § 1651(a); see LRM v. Kastenberg,
72 M.J. 364, 367 (C.A.A.F. 2013). The parties do not contest our jurisdiction to consider
this petition.
A writ of prohibition is the process by which a superior court prevents an inferior
court from exceeding its jurisdiction; it prevents the usurpation of judicial power and is
used to confine courts to the proper exercise of their power and authority. United States
v. Gross, 73 M.J. 864, 866–67 (Army Ct. Crim. App. 2014). Its counterpart is the writ of
mandamus, which is used, inter alia, “‘to compel [officers and commanders] to exercise
[their] authority when it is [their] duty to do so.’” Dew v. United States, 48 M.J. 639, 648
(Army Ct. Crim. App. 1998) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26
(1943). We use the same test for writs of mandamus and prohibition. Gross, 73 M.J. at
866.
The Supreme Court has held that three conditions must be met before a court may
provide extraordinary relief in the form of a writ of extraordinary relief: (1) the party
seeking the relief must show that the “right to issuance of the relief is clear and
indisputable”; (2) seeking the writ must have “no other adequate means to attain the
relief; and (3) “even if the first two prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the writ is appropriate under the
circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004)
(citations and internal quotation marks omitted). A writ of mandamus and a writ of
prohibition are drastic instruments to be used only in truly extraordinary circumstances.
Gross, 73 M.J. at 867.
The petitioner contends the actions of the military judge deprived him of his right
to counsel of choice because they created a conflict within the defense team which then
caused him to release his counsel. Specifically, the petitioner contends the military
judge’s “because of IAC?” reference “set off a chain of events that lead to the wrongful
severance of [his] counsel of choice.” He contends that, regardless of what the military
judge intended, this comment’s negative impact on the fairness of the petitioner’s trial
requires dismissal of the charges or a mistrial. He also argues the military judge must be
recused from further participation in the case due to the appearance of bias. We disagree.
8 Misc. Dkt. No. 2015-03
We review issues affecting the severance of an attorney-client relationship de
novo. United States v. Blaney, 50 M.J. 533, 539 (A.F. Ct. Crim. App. 1999) (citing
United States v. Iverson, 5 M.J. 440 (C.M.A. 1978). We review a military judge’s refusal
to recuse herself for an abuse of discretion. United States v. Butcher, 56 M.J. 87, 90
(C.A.A.F. 2001).
Under the Sixth Amendment,7 the accused in a criminal proceeding has the right to
the assistance of counsel. The “core purpose of the counsel guarantee was to assure
‘[a]ssistance’ at trial, when the accused was confronted with both the intricacies of the
law and the advocacy of the public prosecutor.” United States v. Ash, 413 U.S. 300, 309
(1973). The Supreme Court accordingly explained:
[W]hile the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amendment,
the essential aim of the Amendment is to guarantee an
effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the
lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 159 (1988); see also Morris v. Slappy, 461 U.S. 1,
14, 1983) (“[W]e reject the claim that the Sixth Amendment guarantees a ‘meaningful
relationship’ between an accused and his counsel.”). Similarly, under the UCMJ, an
accused has the right to representation by civilian and military counsel. Article 38(b)(3),
UCMJ, 10 U.S.C. § 838(b)(3).
The right to counsel of choice under the Sixth Amendment, as well as under the
UCMJ, is not absolute and is circumscribed in certain respects. United States v. Rhoades,
65 M.J. 393, 394 (C.A.A.F. 2008); Wheat, 486 U.S. at 159. For example, “‘The need for
the fair, efficient, and orderly administration of justice’ may outweigh the interest of the
accused in being represented by his counsel of choice.” Rhoades, 65 M.J. at 394; see
United States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986); see also Wheat, 486 U.S. at 160
(holding the right to select and be represented by one’s preferred attorney may be
outweighed by the judicial system’s “independent interest in ensuring that criminal trials
are conducted within the ethical standards of the profession and that legal proceedings
appear fair to all who observe them”).
There are some circumstances under which the conduct of others, including a trial
judge and including criticism of the defense counsel, can improperly interfere with an
established relationship between the accused and his counsel.8 The conduct of the
military judge in this case does not rise to the level of creating such interference.
7
U.S. CONST. amend. VI.
8
See United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006) (holding a trial judge’s erroneous denial of the
defense attorney’s application for admission pro hac vice violated the defendant’s Sixth Amendment right to choice
of counsel); United States v. Morrison, 449 U.S. 361, 366-67 (1981) (in assessing remedy, the court assumed that
9 Misc. Dkt. No. 2015-03
After the civilian attorney asked for time to consider how to respond to the
government’s plan to call a witness to testify about the pretext phone call, he indicated
the situation was “getting to the point” where the appellant was not getting a fair trial.
The military judge began to respond with her reaction to that comment, but was
interrupted by a comment from trial counsel. She then pointed out that the defense had
always been on notice that this item existed as potential evidence and therefore should
not require much time to adjust to the government’s change regarding how it was going
to introduce that evidence. The civilian defense counsel acknowledged the defense may
not need much time. The military judge’s observation turned out to be true, as the
defense ultimately only asked for an additional 20-minutes to assess the issue.
However, apparently in response to the military judge’s reasonable comment that
the defense had been on notice about this evidence and should be able to quickly deal
with the situation, the defense counsel also noted “if the fault’s on me, then fine, the
fault’s on me” and again reiterated his view that it was “getting close” to the point of the
appellant not getting a fair trial. This comment led the judge to ask the civilian attorney
if ineffective assistance of defense counsel was the basis for that belief. The civilian
attorney provided further elaboration on the defense’s extensive preparation for trial,
noted the government should have done more to prepare its case and argued an “extra
few minutes” in recess was not unreasonable. The military judge then granted the
defense’s request for a 30-minute recess.
The actions of the military judge here were not inappropriate. She did press the
defense counsel to explain the basis for his belief that the appellant’s trial was getting to
investigators who met with defendant on another matter without knowledge or permission of counsel and who
disparaged counsel and suggested she could do better without him interfered with counsel); Ungar v. Sarafite, 376
U.S. 575, 589-90 (1964) (finding the government’s arbitrary or unreasonable action that impairs the effective use of
counsel of choice may violate a defendant’s constitutional right to due process of law); Williams v. Woodford, 306
F.3d 665, 683 (9th Cir. 2002) (holding that “[w]hen the government deliberately interferes with the confidential
relationship between a criminal defendant and defense counsel [by disparaging that counsel in front of the
defendant], that interference violates the Sixth Amendment right to counsel if it substantially prejudices the criminal
defendant); United States v. Amlani, 111 F.3d 705, 712- 13 (9th Cir. 1997) (noting that a Sixth Amendment claim
would arise if a prosecutor’s repeated disparagement of the defendant’s chosen counsel destroyed his confidence in
the counsel and led him to retain different counsel); United States v. Hutchins, 69 M.J. 282, 291-92 (C.A.A.F. 2011)
(finding no Sixth Amendment violation where the personnel action leading to the severance did not stem from
actions by the prosecution or the command and there was no action taken by them for the purpose of altering the
defense team), rev’d on other grounds, 72 M.J. 294 (C.A.A.F. 2013); United States v. Spriggs, 52 M.J. 235, 246
(C.A.A.F. 2000) (“Absent government misconduct, the routine separation of a judge advocate from active duty
normally terminates any attorney-client relationship . . . .”); United States v. Gnibus, 21 M.J. 1, 6 (C.M.A. 1985)
(noting the legal history that commanders should not take action which interferes with or severs an attorney-client
relationship); United States v. Beckley, 55 M.J. 15, 24-25 (C.M.A. 1981) (noting a staff judge advocate’s threat to
bring ethics complaint against defense attorney was heavy-handed and maybe more than circumstances required but
did not infringe on the appellant’s choice of counsel because the attorney had an actual conflict of interest resulting
in his withdrawal); United States v. Clark, 11 M.J. 70 (C.M.A. 1981) (finding the government’s failure to serve
civilian counsel with the post-trial review improperly interrupted his role as counsel); United States v. Eason, 45
C.M.R. 109, 111 (C.M.A. 1972) (observing that an attorney-client relationship cannot be severed or materially
altered for the administrative convenience of the government); United States v. Allred, 50 M.J. 795, 800 (N.M. Ct.
Crim. App. 1999) (holding the sanctity of the attorney-client relationship must be protected from government
interference).
10 Misc. Dkt. No. 2015-03
the point of being unfair and she did accurately point out that both parties should be
prepared for changes in the other’s evidentiary strategy. When the civilian attorney
referenced his potential “fault” in the defense needing more time and again raised the
issue of a fair trial, the military judge asked defense counsel to clarify whether ineffective
assistance of counsel was the basis for this concern. In response, the defense counsel
indicated the defense had been extensively preparing for the case and simply needed
some time to adjust to this change in the prosecution’s strategy. It was not unreasonable
for the military judge to question the defense on why additional time was needed and
what was underlying the defense’s references to the lack of a fair trial.
Such questioning of defense counsel by a trial judge is not uncommon and is not
inappropriate, especially when it is as benign as what occurred here. Cf. Liteky v. United
States, 510 U.S. 540, 555 (1994) (“[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.”); United States v. Gray 51 M.J. 1,
51-52 (C.A.A.F. 1999) (finding military judge’s criticism of defense counsel’s failure to
interview possible defense witnesses and statement that defense counsel was unable to
ask ineligible voir dire questions was not biased or inappropriate); United States v.
Cooper, 51 M.J. 247, 251 (C.A.A.F. 1999) (holding a military judge’s personal
expression of irritation with a defense counsel did not divest him of the necessary
appearance of impartiality); United States v. Loving, 41 M.J. 213, 257-58 (C.A.A.F.
1994) (“Generally, courtroom clashes between counsel and the judge do not constitute
disqualifying bias.”)
Contrary to the assertion of the petitioner, we do not find the questioning of the
military judge constituted an accusation or a conclusion that his defense counsel were
ineffective. Nonetheless, based on the testimony of the petitioner, the defense team had
an adverse reaction to the military judge’s comments, apparently believing she had said
they were performing inadequately. The military attorney was uncertain about what to do
next while the civilian defense attorney became dejected to the point that he questioned
his future in the law. Understandably, this caused the appellant to question whether his
attorneys should continue to represent him. He ultimately lost confidence in them and
voluntarily released them from further representation, even after the military judge
complimented his civilian attorney and told the petitioner she had observed his counsel to
be “fully effective” so far in the trial.9 When he asked to release the counsel, the
petitioner told the military judge that his decision to release them was based in part on
“prior work that had been done in the case.” The military judge did not ask the petitioner
on the record to elaborate on this aspect of his dissatisfaction.10 The military judge then
allowed the petitioner to release his counsel.
9
The appellant’s successor counsel expressly declined to take a position on whether the prior defense counsel had
been ineffective.
10
Because the substance of the discussions held during R.C.M. 802 sessions was not placed on the record, we do
not know what other information the military judge had learned about this situation.
11 Misc. Dkt. No. 2015-03
Given this, we find the actions of the military judge did not deprive the petitioner
of his counsel of choice. Her discussion with the defense counsel was not objectively
unreasonable and clearly was not intended to be an accusation that the counsel were
ineffective nor to interfere with the petitioner’s relationship with them. The counsels’
reaction to this exchange with the military judge was unexpected and out of the ordinary.
This, along with his concern about “prior work that had been done during the case,” led
the petitioner to lose confidence in their ability to continue as his attorneys. The
petitioner then chose to voluntarily release them from further representation.
Under these circumstances, the military judge did not deprive the petitioner of his
counsel of choice. We also conclude that a reasonable person, knowing all the relevant
facts in this trial so far, would not harbor doubts about the military judge’s impartiality.
See Hasan v. Gross, 71 M.J. 416, 418-19 (C.A.A.F. 2012); Butcher, 56 M.J. at 91;
R.C.M. 902(a). As such, the petitioner has failed to show that his right to the dismissal of
charges, a mistrial or recusal of the military judge is clear and indisputable. Under these
circumstances, we do not find issuance of the writs of prohibition or mandamus to be
appropriate. The military judge’s actions and rulings do not constitute a judicial
usurpation of power, and this is not a truly extraordinary circumstance requiring us to
intervene through the drastic instrument of an extraordinary writ. See United States v.
Labella, 15 M.J. 228, 229 (C.M.A. 1983); Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A.
1983).
Conclusion
The petitioner has not carried his burden to demonstrate that his case presents
extraordinary circumstances warranting issuance of the writs of prohibition or
mandamus. Accordingly, it is by the court on this 24th day of August 2015,
ORDERED:
That the petition for extraordinary relief in the nature of writs of prohibition and
mandamus and motion for a stay are hereby DENIED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
12 Misc. Dkt. No. 2015-03