Facts
- Staff Sergeant Michael L. Baker (U.S. Army) was tried by a special court-martial with officer members on multiple UCMJ specifications, including attempted larceny, dereliction of duty, larceny, absence offenses, and willful disobedience.
- The military judge dismissed one specification; the panel acquitted Baker of seven of the remaining eleven specifications.
- Baker was convicted of attempted larceny, absence from appointed place of duty, and two specifications of willful disobedience of a superior commissioned officer.
- The panel sentenced Baker to a bad-conduct discharge and reduction to E-1; the convening authority approved.
- Before Baker testified, his two defense counsel concluded he intended to give false testimony and sought an off-the-record in-chambers conference with the military judge, excluding Baker, to request withdrawal for ethical reasons.
- The military judge informed Baker that counsel sought to withdraw for ethical reasons and explained a narrative-testimony procedure under which Baker could testify without counsel conducting a direct examination.
- The judge explained the procedure and risks; Baker agreed on the record to testify in narrative form.
- Baker testified in narrative form, then underwent cross-examination; the military judge asked several questions. Defense counsel did not conduct direct examination and did not object or otherwise participate during Baker’s testimony.
- The military judge directed defense counsel to prepare written memoranda describing the circumstances surrounding the ethical conflict; counsel did not produce them.
- The same trial defense counsel represented Baker in post-trial matters, even after Baker asserted in clemency submissions that counsel had “abandoned him” during his testimony.
Issues
- Whether Baker received ineffective assistance of counsel when counsel sought to withdraw due to anticipated perjury, were not allowed to withdraw, and provided no assistance during his narrative testimony.
- Whether the military judge erred by not determining a factual basis for counsel’s belief that Baker would testify falsely before permitting narrative testimony that limited counsel’s participation.
- Whether Baker received ineffective assistance in post-trial proceedings due to continued representation by the same counsel after Baker accused them of abandonment, creating a conflict of interest.
Decision
- The Court of Appeals for the Armed Forces affirmed the Army Court of Criminal Appeals’ decision upholding the findings and sentence.
- The court held that the narrative-testimony procedure, as used here, did not amount to a complete denial of counsel and did not warrant a presumption of prejudice.
- Applying ineffective-assistance standards, the court concluded Baker failed to show deficient performance and resulting prejudice from counsel’s limited role during testimony.
- The court held the military judge did not commit reversible error by accepting counsel’s ethical representation and implementing narrative testimony without an extensive factual inquiry that could intrude on privilege.
- The court rejected the post-trial conflict claim because Baker did not show any conflict adversely affected counsel’s post-trial performance.
Legal Principles
- Defense counsel may not assist in presenting testimony counsel knows is false; when counsel reasonably anticipates client perjury, a narrative-testimony approach may be used while counsel continues representation in other aspects of the case.
- A limited withdrawal from direct examination of suspected perjurious testimony is not necessarily “total absence” of counsel at a critical stage; structural-error treatment is reserved for true deprivation of counsel.
- When the claim is not structural, ineffective assistance is assessed under Strickland (deficient performance and prejudice), not a presumption of prejudice under Cronic.
- A military judge may rely on counsel’s representations of an ethical conflict and is not required to conduct an on-the-record inquiry that forces disclosure of privileged communications, so long as the accused is advised of rights and the procedure is knowingly and voluntarily chosen.
- Continued post-trial representation by trial counsel after the accused criticizes counsel does not require relief absent proof that an actual conflict adversely affected counsel’s performance.
Conclusion
CAAF upheld the use of narrative testimony to address anticipated perjury where the accused was advised of the procedure and counsel remained in the case otherwise, and it found no reversible judicial error or ineffective assistance at trial or post-trial because Baker did not show prejudice or an adverse conflict effect.