United States v. Baca

27 M.J. 110, 1988 CMA LEXIS 2980, 1988 WL 100237
CourtUnited States Court of Military Appeals
DecidedSeptember 30, 1988
DocketNo. 53,859; CM 445775
StatusPublished
Cited by29 cases

This text of 27 M.J. 110 (United States v. Baca) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Baca, 27 M.J. 110, 1988 CMA LEXIS 2980, 1988 WL 100237 (cma 1988).

Opinions

Opinion of the Court

EVERETT, Chief Judge:

Convicted by general court-martial members of drunken driving and involuntary manslaughter,1 appellant contends (22 M.J. 239) before this Court that he was denied his Sixth-Amendment2 right to counsel.3 Without reaching this claim, we conclude, instead, that the military judge erred in severing appellant’s established attorney-client relationship with his detailed defense counsel without good cause. See Art. 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b); accord R.C.M. 505(d)(2)(B)(ii), Manual for Courts-Martial, United States, 1984.

I

During the several months between the automobile accident which gave rise to the charged offenses and the beginning of this trial, Captain Stephen Deardorff had represented Baca. In that capacity, Deardorff conducted several interviews of his client and had been Baca’s counsel during the investigation of the charges pursuant to Article 32, UCMJ, 10 U.S.C. § 832. Accordingly, an attorney-client relationship between the two was long-established.

At a pretrial hearing under Article 39(a) of the Uniform Code, 10 U.S.C. § 839(a), Baca moved to have his trial continued. Captain Stephanie Spahn, who had been appointed as assistant defense counsel 3 days earlier, explained that Baca appeared to be suffering from amnesia and that the continuance was requested in order “to allow Specialist Baca to be examined by a neurologist so that a more definitive deter[112]*112mination can be made as to whether or not he is suffering from retrograde amnesia.” When the military judge asked why that was important one way or the other, Spahn responded that “the defense asserts that retrograde amnesia on the part of Specialist Baca would prohibit him from effectively assisting in his own defense, would make him incompetent to stand trial.”

The military judge clearly was skeptical. He suggested that if society were willing “to abate proceedings” simply “because an accused said he didn’t remember what happened, there wouldn’t be any trials.” Spahn answered that it was the purpose of the defense to learn whether there was a neurological or physiological basis for the apparent amnesia — and that, “if there is such a basis that would make the accused incompetent to stand trial because he cannot participate in his own defense if he doesn’t remember what happened that evening.”

Lengthy discussion on the issue followed, with both defense counsel arguing that a physiological basis for amnesia would form an appropriate basis for a continuance; with the military judge openly doubting the legal basis for such a position; and with trial counsel urging that, anyway, the prosecution could present “evidence to show that the amnesia, the alleged amnesia, is feigned.”

At one point during this exchange, the military judge asked what evidence the defense intended to present to demonstrate Baca’s amnesia. Among other witnesses, Deardorff indicated that he, himself, would testify as to his “observations” of Baca and the difficulty Baca had had in remembering even their own discussions from one moment to the next.

Ultimately, the military judge denied the motion to continue the proceedings and to order a neurological examination of Baca.

At that point, the military judge shifted gears somewhat and queried defense counsel: “Let’s talk about your testifying. Given the state of the law [that amnesia is not an appropriate legal basis to abate proceedings], what is the purpose of your testifying?” He explained, “My concern here is that we are raising a potential for severing an attorney-client relationship that need not be raised because this is not a hot issue.” The defense responded that the legal effect of an accused’s amnesia was, indeed, a viable issue that the defense was willing and prepared to argue. When the military judge said that this was not then the issue — that, instead, “the issue here is ... whether you want to testify” — Deardorff explained that, if the judge were to rule that amnesia is not relevant to the issue of competence, “then at that point I will not testify.” Otherwise, he would need to do so.

At this point, the military judge tried to clarify the state of the proceedings:

MJ: Where we are is this. You have given notice of your intention to litigate competence to stand trial.
DC: Yes, sir.
MJ: Okay, I haven’t decided that issue.
DC: Yes, sir.
MJ: You requested a continuance to round up some evidence which we agree will establish no more than amnesia resulting from a blow to the head if the doctor says what you want him to.
DC: That’s correct, Your Honor.
MJ: Well, there is no reason to do that. There is no good cause for that kind of continuance. If you can get to your doctor in the time we have available that’s fine, but I am not going to order the doctor to do a neurological examination. Now we have a sanity board [report] and we have a virtual non-issue. Now, I’m willing to be convinced, but thus far there is no reasonable doubt in my mind and I’m making decisions about other matters, and the question now is whether to cause you, the accused, and the judicial system the turmoil of testifying about something that isn’t necessarily worth the effort. Now, if you think it’s worth the effort, fine, we’ll go through the turmoil, but I want you to understand the consequences which may in-[113]*113elude severance of an attorney/client relationship.

In an obvious effort to remove himself from the horns of the dilemma posed by the military judge, Deardorff asked the military judge to assume for the moment that the defense could establish that Baca had amnesia and that it was caused by a blow to the head during the accident. He also asked the judge to keep in mind the difficulty this amnesia presented for counsel in preparing a defense or in advising Baca whether a plea bargain was appropriate. On these premises and nothing more, Deardorff inquired whether the military judge would rule, nonetheless, that Baca was competent to stand trial. He explained that, if so, then this would resolve the matter, for then there would be no need for him to testify. The military judge declined to offer such a ruling and opined that to do so would open himself up to a claim that he had thereby “somehow deprived the accused of presenting relevant evidence on the subject.”

After a short recess, all parties returned to the courtroom. Thereupon, Deardorff offered this proposal: He would remove himself as defense counsel for purposes of the competence hearing, and Spahn would litigate that issue on behalf of Baca. He would testify at that hearing as a witness, and Baca would agree to waive the attorney-client privilege for that purpose, so that counsel could be freely cross-examined as a witness by trial counsel.

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Cite This Page — Counsel Stack

Bluebook (online)
27 M.J. 110, 1988 CMA LEXIS 2980, 1988 WL 100237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-baca-cma-1988.