## Facts

- An Army sergeant was charged at a general court-martial with three specifications of forcible sodomy (Article 125, UCMJ) for conduct between 1993 and 1995 involving three male civilian complainants.
- A senior military defense counsel assigned himself as lead counsel after learning the accused was homosexual.
- Early in the representation, lead counsel initiated and maintained a secret sexual relationship with the accused; the accused later stated he felt pressured to continue and feared adverse consequences if he ended it.
- After plea negotiations, the accused pleaded guilty to two specifications of indecent assault (Article 134, UCMJ) under a pretrial agreement; the government dismissed the forcible sodomy charges.
- The military judge convicted the accused consistent with the pleas and imposed a dishonorable discharge, confinement, forfeitures, and reduction; the convening authority approved a reduced confinement term under the agreement.
- After trial, the accused’s parents informed the convening authority that lead counsel had pressured the accused for sexual favors during representation; lead counsel later died by suicide.
- The accused sought post-trial relief, asserting ineffective assistance based on counsel’s conflict of interest; after a fact-finding hearing, the intermediate military appellate court denied relief and affirmed.
- The Court of Appeals for the Armed Forces granted review on whether the sexual relationship created a conflict that denied effective assistance.

## Issues

1. Whether the accused was denied the right to conflict-free and effective assistance of counsel when he and lead defense counsel engaged in a secret sexual relationship during representation.
2. Whether the intermediate appellate court erred in concluding the relationship did not create a conflict of interest that denied effective assistance.

## Decision

- The court reversed the intermediate appellate court.
- The court held the secret sexual relationship created an actual conflict of interest that adversely affected counsel’s performance.
- The court set aside the findings and the sentence.
- The court authorized a rehearing.

## Legal Principles

- The Sixth Amendment and Article 27, UCMJ guarantee effective assistance of counsel that is free from conflicts of interest.
- An attorney’s personal interests that diverge from the client’s interests can create an actual conflict when they realistically risk distorting professional judgment.
- A secret sexual relationship between defense counsel and an accused in a criminal proceeding can constitute an actual conflict because it creates incentives to protect counsel from exposure and consequences, affecting advice on strategy and plea negotiations.
- When an actual conflict adversely affects counsel’s performance in advising a guilty plea, the plea’s reliability and voluntariness are undermined, requiring setting aside the resulting findings and sentence.

## Conclusion

The court held that lead counsel’s secret sexual relationship with the accused created an actual, performance-affecting conflict of interest that undermined the reliability of the guilty pleas and sentencing proceedings, warranting reversal and a rehearing.


United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004)