The Navy-Marine Court of Criminal Appeals reverses sexual assault conviction based on appellant’s right to choose his military defense counsel.
Yeoman Second Class Cooper (appellant) was convicted at a court-martial of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to five years confinement, a dishonorable discharge, a reduction in rank and forfeiture of all pay and allowances. Appellant’s conviction was based on the allegations of Petty Officer Second Class (PO2) J.P. that appellant sexually assaulted her when they were both stationed on Guantanamo Bay. Appellant stated that he and PO2 J.P. went back to his trailer after chapel services and had consensual sex. However, PO2 J.P. alleged that it was not consensual. The Navy-Marine Corps Court of Criminal Appeals (NMCCA) overturned this conviction in United States v. Cooper on 7 March 2018, based on an error made by his detailed military counsel. Appellant was detailed Lieutenant (LT) J.B as his military counsel. However, appellant was not pleased with her services after his Article 32 hearing and decided that he wanted to invoke his right to an Individual Military Counsel (IMC) of his choice. Article 38(b), UCMJ states that an accused may hire a civilian counsel, be detailed a military counsel or be represented by military counsel of his own choosing as long as the person requested is reasonably available. In appellant’s case, appellant requested three different counsel. First, appellant requested a navy commander who was unavailable because he was transitioning off of active duty. Lieutenant J.B. informed appellant that he was unavailable for this reason. Second, appellant requested Captain (Capt) J.N. as his IMC. Captain J.N. was also unavailable due to his job position and LT J.B. made appellant aware of his unavailability. Appellant then states that he requested Capt T.N. who he had met with and formed an attorney-client relationship with while at Guantanamo Bay. Appellant had met with Capt T.N. regarding some other unrelated legal matters and had also briefly discussed the allegations against him involving sexual assault. In fact, after the Article 32 hearing, appellant spoke with Capt T.N. and expressed his dissatisfaction with LT J.B. In response, Capt T.N. stated that he was available to assist and that appellant should ask for him specifically to be his counsel. Appellant states that he did ask for Capt T.N. and was told by LT J.B. that he was also unavailable. While LT J.B. denied that appellant ever made this request, the Court found after a fact-finding hearing that appellant did in fact make the request. The Court also found that LT J.B. failed to forward this as a written request and therefore failed to properly make the request on appellant’s behalf. The NMCCA therefore found that appellant was in fact denied his right to an available IMC of his choice. The NMCCA therefore reversed appellant’s conviction and sentenced based on this defense counsel’s failure. If you or your loved one is facing a court-martial or wants to appeal one, it is very important that you pick an attorney with experience, who you will defend you fully. I have a great deal of experience with court-martials and court-martial appeals. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.