United States v. Cain
59 M.J. 285, 2004 CAAF LEXIS 290, 2004 WL 547549 (2004)
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Rule of Law:
A secretive, criminal sexual relationship between a military defense counsel and his client creates an inherently prejudicial conflict of interest, constituting per se ineffective assistance of counsel in violation of the Sixth Amendment.
Facts:
- Sergeant Cain was charged with three specifications of forcible sodomy under the Uniform Code of Military Justice (UCMJ).
- Major S, the senior defense counsel at Fort Bragg, assigned himself to represent Cain in the proceedings.
- At the outset of the attorney-client relationship, Major S, who was married, initiated a homosexual relationship with Cain.
- The relationship involved multiple acts of oral and anal sodomy, which constituted criminal offenses (sodomy and fraternization) under the UCMJ for both men.
- At Major S's behest, Cain was temporarily transferred to Fort Bragg, where he worked under Major S's supervision in the defense office.
- Cain expressed distress about the sexual relationship to third parties, including two civilian attorneys who advised him that Major S's conduct was unethical.
- Despite his misgivings and the external advice, Cain continued the relationship, fearing he would lose what he perceived to be Major S's superior legal skills.
- Cain ultimately accepted a pretrial agreement, negotiated by his assistant defense counsel, to plead guilty to two specifications of the lesser offense of indecent assault.
Procedural Posture:
- Appellant Cain was convicted at a general court-martial pursuant to his guilty pleas to indecent assault.
- The convening authority approved a sentence in accordance with a pretrial agreement.
- Post-trial, Cain's new counsel filed a memorandum with the convening authority alleging ineffective assistance of counsel and requesting a new trial, which was denied.
- Cain appealed his conviction to the United States Army Court of Criminal Appeals.
- The Army Court of Criminal Appeals ordered an evidentiary hearing (a DuBay hearing) to establish facts concerning the relationship between Cain and his lead defense counsel.
- Following the hearing, the Army Court of Criminal Appeals affirmed Cain's conviction, finding no actual conflict of interest and concluding that Cain had waived any potential conflict.
- Cain, the Appellant, petitioned for and was granted review by the United States Court of Appeals for the Armed Forces.
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Issue:
Does a secretive homosexual relationship between a lead defense counsel and his client, which constitutes a criminal offense under the Uniform Code of Military Justice, create an inherent conflict of interest that denies the client the Sixth Amendment right to effective assistance of counsel?
Opinions:
Majority - Judge Effron
Yes. The uniquely proscribed relationship between defense counsel and his client was inherently prejudicial and created a per se conflict of interest. Unlike a typical ethics violation, Major S's conduct placed both himself and his client at risk of criminal prosecution for the very type of offense for which the client was on trial. This created an extraordinary pressure on counsel, pitting his duty of loyalty to his client against his personal interest in avoiding his own criminal exposure. Any exploration of Cain's conduct at trial could have led to the discovery of Major S's own crimes. This conflict is distinguishable from prior cases like Babbitt because it involved a military lawyer's abuse of office, fraternization, and repeated commission of UCMJ offenses, making it so threatening as to justify a presumption of prejudice. Furthermore, Cain's discussions with civilian attorneys did not constitute a knowing and intelligent waiver of his right to conflict-free counsel.
Dissenting - Chief Judge Crawford
No. The majority improperly creates a per se rule of ineffectiveness contrary to Supreme Court precedent in Strickland v. Washington, which requires a defendant to show both deficient performance and actual prejudice. Cain has demonstrated no prejudice; in fact, he received a favorable pretrial agreement negotiated by an unconflicted assistant defense counsel, which significantly reduced his charges and sentence. A thorough providence inquiry by the military judge confirmed Cain's plea was voluntary and that he was satisfied with his counsel. Furthermore, Cain knowingly and intelligently waived his right to conflict-free representation by deliberately continuing the relationship with Major S, despite being advised by two other attorneys that it was unethical, because he wanted to retain what he believed was an excellent lawyer.
Analysis:
This decision establishes a significant, albeit narrow, exception to the standard Strickland test for ineffective assistance of counsel within the military justice system. By creating a per se rule of presumed prejudice, the court signals that certain attorney misconduct—specifically, engaging in a criminal sexual relationship with a client—is so fundamentally corrosive to the attorney-client relationship that an inquiry into actual prejudice is unnecessary. This holding heightens the ethical and professional responsibilities of military defense counsel, whose personal conduct can be subject to criminal sanction under the UCMJ in ways not applicable to their civilian counterparts. The ruling provides a powerful tool for defendants in similar situations while reinforcing the unique legal landscape of the armed forces.
