                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                    Michael L. BAKER, Staff Sergeant
                          U.S. Army, Appellant

                                    No. 02-0334
                            Crim. App. No. 9800743

       United States Court of Appeals for the Armed Forces

                             Argued April 1, 2003

                             Decided July 1, 2003

     EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a separate dissenting opinion.


                                       Counsel

For Appellant: Captain Craig A. Harbaugh (argued); Colonel
    Robert E. Teetsel, Lieutenant Colonel E. Allen Chandler,
    Jr., Major Imogene M. Jamison (on brief); Colonel Adele H.
    Odegard, Captain Brian S. Heslin and Captain Sean S. Park.

For Appellee: Captain Christopher Graveline (argued); Colonel
    Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines and
    Major Jennifer H. McGee (on brief).



Military Judge:      Donna M. Wright


        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Baker, No. 02-0334/AR



   Judge EFFRON delivered the opinion of the Court.

   The charges against Appellant included 12 separate

specifications: one each of attempted larceny, dereliction of

duty, and larceny under Articles 80, 92, and 121, Uniform Code

of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 882,

and 921 (2000); four involving failure to go to or absenting

himself from his appointed place of duty under Article 86, UCMJ,

10 U.S.C. § 886 (2000); three specifications of willful

disobedience of a commissioned officer under Article 90, UCMJ,

10 U.S.C. § 890 (2000); and two of willful disobedience of a

non-commissioned officer under Article 91, UCMJ, 10 U.S.C. § 891

(2000).   Appellant contested each of the charges before a

special court-martial composed of officer members.    The military

judge dismissed one of the specifications and the court-martial

panel returned findings of not guilty on seven of the remaining

eleven specifications.   The panel convicted Appellant of one

specification of attempted larceny, one specification of absence

from his appointed place of duty, and two specifications of

willful disobedience of a superior commissioned officer.

   The panel sentenced Appellant to a bad-conduct discharge and

reduction to the grade of Private E-1.   The convening authority

approved the sentence and the Court of Criminal Appeals affirmed

in an unpublished opinion.



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United States v. Baker, No. 02-0334/AR


     On Appellant's petition, we granted review and specified

the following issues:∗

           I. WHETHER APPELLANT RECEIVED INEFFECTIVE
           ASSISTANCE OF COUNSEL WHEN HIS TWO DEFENSE
           COUNSEL ATTEMPTED TO WITHDREAW FROM THE CASE
           FOR ETHICAL REASONS, WERE UNABLE TO
           WITHDRAW, AND THEN PROVIDED NO ASSISTANCE
           DURING HIS TESTIMONY?

           II. WHETHER THE MILITARY JUDGE ERRED BY
           FAILING TO DETERMINE WHETHER THERE WAS A
           FACTUAL BASIS FOR DEFENSE COUNSEL’S BELIEF
           APPELLANT WOULD TESTIFY FALSELY BEFORE
           DEPRIVING APPELLANT OF HIS RIGHT TO COUNSEL
           DURING HIS TESTIFYING ON THE MERITS?

           III. WHETHER APPELLANT RECEIVED INEFFECTIVE
           ASSISTANCE OF COUNSEL WHEN TRIAL DEFENSE
           COUNSEL REMAINED HIS COUNSEL DURING POST-
           TRIAL PROCEEDINGS AFTER APPELLANT IN HIS
           CLEMENCY PETITION ASSERTED THAT HIS COUNSEL
           HAD ABANDONED HIM DURING THE TRIAL?

     For the reasons set forth below, we remand for a fact-

finding hearing pursuant to United States v. DuBay, 17 C.M.A.

147, 37 C.M.R. 411 (1967).



                              I. BACKGROUND

     At the close of the prosecution's case, defense counsel

made a series of motions for findings of not guilty on nine of

the twelve specifications.       The military judge dismissed one

specification involving willful disobedience of a non-


∗
  Argument was heard in this case at the Suffolk University School of Law,
Boston, Mass., as part of this Court's Project Outreach. See United States
v. Mahoney, __ M.J. __, __ n.1.(C.A.A.F. 2003).


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United States v. Baker, No. 02-0334/AR


commissioned officer, and permitted the trial to proceed with

respect to the remainder of the charged offenses.   See Rule for

Courts-Martial 917 [hereinafter R.C.M.].

     The defense began its case-in-chief with courtroom

testimony by two witnesses.   Following their testimony, the

defense presented stipulated testimony from four other

witnesses, as well as eight exhibits.

     Following these presentations, the defense requested “a

short recess” and the military judge announced that the court

would be “in recess for five minutes.”   Forty minutes later, the

proceedings resumed for a session without the presence of the

members under Article 39(a), UCMJ, 10 U.S.C. § 839(a).    After an

additional two-minute recess, the military judge, trial counsel,

and defense counsel addressed the potential use of a prior

civilian conviction:

          Military Judge: The court's called to
          order.
          All parties present when the court recessed
          are again present except the members.
          I have before me what's Prosecution Exhibit
          18 for identification which is a copy of a
          civilian conviction, and this is from 1986;
          is that correct, government?

          Trial Counsel:   Yes, ma'am.

          Military Judge: And you agree, as it's over
          10 years old, that unless -- that under 609
          it would not be admissible unless the
          requirements of 609(b) were met; is that
          correct?



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United States v. Baker, No. 02-0334/AR


          Trial Counsel:   Yes, Ma'am, that's correct.

          Military Judge: Okay. Which is basically
          that a conviction over 10 years old is not
          admissible unless the court determines, in
          the interest of justice, that the probative
          value of the conviction substantially
          outweigh[s] its prejudicial effect.
          If and when the accused testifies, then at
          that time you would have to offer it and
          argue that that rule has been met; right?

          Trial Counsel:   Yes, ma'am.

          Military Judge: I just want to make that
          clear, that even if the accused testifies,
          it may or may not come in, and whether it
          comes in or not depends in large part on
          what the accused says.
          Defense, do you understand?

          Defense Counsel:   Yes, ma'am.

     Immediately following the defense counsel’s response, the

military judge raised a new topic, advising Appellant that his

lawyers wanted to be relieved of their responsibility to

represent him:

          Military Judge: All right. Now, Sergeant
          Baker, your attorneys have basically come to
          me and said that based on what they think
          your testimony is going to be, they want off
          your case. Okay?

          Accused:   Yes, ma'am.

     The military judge did not indicate when she had engaged in

a discussion with defense counsel regarding their desire to be

“off” the case.   The defense brief states that Appellant was not

present for the discussion between defense counsel and the



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United States v. Baker, No. 02-0334/AR


military judge, and the Government has not challenged that

statement.

     After advising Appellant that his counsel no longer wished

to represent him, the military judge engaged in a further

interchange with Appellant and his counsel regarding the

military judge’s assumptions about counsel’s request to withdraw

from representation:

           Military Judge: Now, they haven't told me
           anything more than that, but what I read
           into that -- and this is what I'm reading
           into it -- is that they expect or they're
           thinking that you are going to testify
           inconsistently with what you have said
           before. Okay?

           Accused:   Yes, ma'am.

           Military Judge: Just based on the fact that
           they want off the case, that's the reason I
           think it is.
           What I'm telling you is this, that --
           Captain [B], am I right? Is the court right
           that you do not even feel that you can
           ethically put your client on the stand and
           not even ask him any questions, and just --?

           Cpt [B]:   That's correct, ma'am.

           Military Judge:   Captain [M], is the same
           true for you?

           Cpt [M]:   Yes, ma'am.


     After defense counsel responded, the military judge told

Appellant how the court-martial would proceed if he desired to

testify:



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United States v. Baker, No. 02-0334/AR


          What I am telling you, Sergeant Baker, is if
          you persist in this wish to testify, I can't
          tell you that you can't testify. But your
          attorneys don't have to basically go along
          with offering your testimony and they're not
          going to cooperate in offering what they
          believe might be perjured testimony to the
          panel.

          So if you want to do this, if you want to
          testify without the assistance of counsel,
          you can do that. But what that means is
          when the members come back, I'm going to say
          -- I'm going to say the defense calls
          Sergeant Baker to the stand. The trial
          counsel is going to swear you in. And then
          you're going to testify all by yourself.

          Now one of the dangers there is, when you do
          that, you don't have the assistance of a
          lawyer who has been trained to keep you away
          from certain areas of testimony that might
          not be helpful to yourself. One of those
          areas is that threat of this prior
          conviction, which at this point is not
          admissible on the merits of the case; but,
          depending on what you say, it may come in on
          cross examination, because you are going to
          be cross examined. So that means the
          government's side, with the two lawyers they
          have there, are going to be able to go at
          you and, basically, your defense counsel
          aren't going to do anything to help you.

          Do you understand that?

          Accused:   Yes, ma'am.

          Military Judge: Do you understand the risk
          you run when you get on the stand and you
          don't have the help of a lawyer helping you
          through your testimony?

          Accused:   Yes.




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United States v. Baker, No. 02-0334/AR


     Appellant asked the military judge if, during his

testimony, he could refer to notes that he had prepared prior to

trial.   The military judge advised him that he could do so, that

the notes would be marked as an exhibit, that the government

would have the opportunity to review the notes, and that he

could be cross-examined on the notes.    The military judge

returned to the subject of testifying without the benefit of

counsel:

           Military Judge: And the other thing I want
           to say -- I want to say a couple of other
           things -- like I said, when you do this, you
           know, we have lawyers represent people for a
           purpose, and they know what things to avoid
           and what things to emphasize. And when you
           take the stand like this, you're not going
           to have the assistance of counsel, and
           you're going to be cross-examined, and if
           the members have questions they're going to
           be able to ask you, and you're not going to
           have a lawyer there to talk to about whether
           or not you should answer, or how you should
           answer it.

           The other thing is --

           Accused: Does -- does -- is the same
           procedure going to be followed? I mean,
           will they go through you?

           Military Judge: The panel questions? Yes.
           And I will decide whether or not they're
           asked.

           But your counsel aren't going to get a
           chance to say objection because they're not
           going to participate in any way with your
           testifying.




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United States v. Baker, No. 02-0334/AR


     Recognizing the potential for appellate litigation of this

matter, the military judge directed defense counsel to prepare a

memorandum for the record:

          Military Judge: The other thing is I will
          instruct them to prepare for their records a
          memorandum for record basically outlining
          the situation as it exists now, and then
          after you testify the situation that existed
          after that. Now that document is going to
          remain in their files, but that's to protect
          them in case you say anything later down the
          road about what your defense counsel would
          do or not do, or whether you didn't have
          effective assistance of counsel.

          And, at a later date, if their
          representation of you is brought into
          question or challenge, then they're going to
          have those documents in their file and
          they're going to be able to present them to
          the appropriate authorities to defend
          themselves against ineffective assistance of
          counsel claims.

          Do you understand that?

          Accused:   Yes, ma'am.

          Military Judge: And you understand the risk
          you run if you testify without the benefit
          of counsel?

          Accused:   Yes.

     The military judge also told Appellant that his lawyers

would not be able to discuss his testimony during defense

counsel’s argument to the members:

          Military Judge: The other thing is that
          counsel will not argue what you said,
          because they don't feel that they can
          ethically do that, and the court is not


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United States v. Baker, No. 02-0334/AR


          going to require them to do that. Now
          they've asked off the case. I'm not going
          to allow them to get off the case. I'm not
          going to release them. Okay? The court has
          the power to do that, and at this late
          juncture, I'm not going to let you frustrate
          the process and I'm not going to make you go
          through the rest of this trial without the
          benefit of counsel. So I'm not going to
          permit them off the case.

               But when they go to do their closing
          argument, they're not going to refer to
          things you said. They're going to attack in
          other ways, they're going to attack the
          government's case I'm sure, but they're
          going to do it with the evidence that's been
          presented so far.

               Do you understand that?

          Accused:   Yes, ma'am.

     The military judge asked Appellant if he would like to

discuss the matter further with his counsel.   When he said that

he would like to do so and refer to the notes prepared prior to

trial, the military judge provided him with further advice

regarding prosecution access to the materials.   After a fifteen-

minute recess, the military judge confirmed that Appellant

wanted to testify, marked Appellant’s notes as an exhibit, and

recalled the members to the courtroom.   At that point, the

military judge announced:

          Let the record reflect that the members have
          reentered the courtroom.

          Members, the defense calls Staff Sergeant
          Baker, the accused, to the stand.



                                   10
United States v. Baker, No. 02-0334/AR


     Without the assistance of counsel while he was on the

witness stand, Appellant testified at length in narrative form,

responded to the prosecution’s detailed cross-examination, and

answered a series of questions posed by the military judge.     At

the conclusion of his testimony, the defense rested its case,

and the prosecution offered brief testimony in rebuttal.

     As anticipated by the military judge, appellate review has

focused on the actions of both defense counsel.   Contrary to the

expectation of the military judge, counsel did not take the

steps necessary to ensure that explanatory memoranda were

available for review during this appeal.   During the present

appeal, we noted that the military judge directed each defense

counsel to prepare and retain explanatory memoranda, and we

ordered counsel to file the pertinent documents under seal.

United States v. Baker, 58 M.J. 242, 243 (C.A.A.F. 2003).    Both

defense counsel, however, have informed the Court in separate

affidavits that they were unable to comply with the order

because they do not possess the requested documents.   The

affidavits filed by trial defense counsel do not indicate that

such documents are otherwise available, and no such

representation has been made by appellate counsel for either

party.




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United States v. Baker, No. 02-0334/AR




                           II. DISCUSSION

     This appeal concerns the Sixth Amendment right to the

effective assistance of counsel.      U.S. Const. amend. VI;

Strickland v. Washington, 466 U.S. 668 (1984).      Appellant

contends that the actions of his defense counsel at trial, who

sought to withdraw from the case and who did not provide

assistance during Appellant’s testimony, deprived him of the

effective assistance of counsel.      As outlined in the previous

section, the record indicates that the actions by defense

counsel at trial may have been prompted by concern about the

veracity of Appellant’s proposed testimony.


1.   Competing interests

     When circumstances indicate that an accused may commit

perjury at trial, counsel for the accused is placed at the

intersection of competing and sometimes conflicting interests.

See generally John Wesley Hall, Jr., Professional Responsibility

of the Criminal Lawyer 809-15 (2d ed. 1996); Terence F.

MacCarthy & Carol A. Brook, Anticipated Client Perjury: Truth or

Dare Comes to Court, in Ethical Problems Facing the Criminal

Defense Lawyer (Rodney J. Uphoff ed., 1995).      In addition to the

constitutional right to the effective assistance of counsel,

these interests include:



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United States v. Baker, No. 02-0334/AR


     (1) The constitutional right of an accused to testify in

his or her own defense.    Rock v. Arkansas, 483 U.S. 44, 51

(1987); Nix v. Whiteside, 475 U.S. 157 (1986); Harris v. New

York, 401 U.S. 222, 225 (1971).

     (2) The ethical obligation of defense counsel to provide

legal representation that is both competent and diligent.      See,

e.g., Dep't of the Army, Regulation 27-26, Rules of Professional

Conduct for Lawyers Rules 1.1, 1.3 (May 1, 1992) [hereinafter AR

27-26]; American Bar Association Model Rules of Prof'l

Responsibility Rules 1.1, 1.3 (1983) [hereinafter ABA Model

Rule].

     (3) The general prohibition against disclosure of

communications between a client and an attorney, subject to

limited exceptions.    Military Rule of Evidence 502 [hereinafter

M.R.E.]; AR 27-26, Rule 1.6; ABA Model Rule 1.6.

     (4) The criminal prohibitions concerning false testimony on

a material matter.    See, e.g., Articles 98, 131, 134, UCMJ, 10

U.S.C. §§ 898, 931, 934 (2000) (noncompliance with procedural

rules, perjury, and subornation of perjury, respectively).     See

Nix 475 U.S. at 173.

     (5) The ethical duty of an attorney to not offer or assist

in offering material evidence that an attorney knows to be

false.   See AR 27-26, Rule 3.3(a) (duty of candor toward the




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United States v. Baker, No. 02-0334/AR


court); Rule 3.4 (obligation of fairness to opposing party and

counsel); ABA Model Rules 3.3(a), 3.4.

       (6) The ethical duty of an attorney who knows that a client

is contemplating a criminal act to counsel the client against

doing so.    See AR 27-26, Rule 2.1, 3.3, cmt.; ABA Model Rule

2.1.

       (7) The related ethical duty of an attorney to withdraw if

a client persists in a fraudulent or criminal course of conduct.

See AR 27-26, Rule 1.16, 3.3, cmt.; ABA Model Rule 1.16.

       (8) The rules governing impeachment and rebuttal.    See,

e.g., M.R.E. 608, 609, 613; Nix, 475 U.S. at 173; United States

v. Havens, 446 U.S. 620 (1980); Harris, 401 U.S. at 225-26.


2.   Procedural considerations

       The initial actions taken by a competent defense counsel in

preparing diligently for trial are relatively non-controversial.

At the outset, the attorney will discuss with the client the

relative benefits of testifying versus relying on the privilege

to remain silent.    In the course of such a discussion, the

attorney will ascertain from the client the nature of any

proposed testimony.    The attorney will then conduct a reasonable

investigation to identify potential areas of vulnerability to

cross-examination or rebuttal.    See American Bar Ass’n,




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United States v. Baker, No. 02-0334/AR


Standards for Criminal Justice, The Defense Function Std. 4-4.1

(2001).

     In the course of such trial preparation, the attorney may

identify conflicts between the proposed testimony and other

evidence, including prior statements to the attorney by the

client.   Such conflicts do not necessarily mean that the

proposed testimony is false.    See Hall, supra, at 828-29 n.5.

It may well be that the client was reluctant to be candid with

the attorney until a degree of comfort was established in the

relationship.    Under the ethical obligations of competence,

diligence, fairness, and candor, the attorney cannot close his

or her eyes to the possibility that the proposed testimony is

false.    See Brian Slipakoff & Roshini Thayaparan, Current

Development 2001:    The Criminal Defense Attorney Facing

Prospective Client Perjury, 15 Geo. J. Legal Ethics 935, 942-43

(2000).   The attorney must conduct an appropriate investigation

to ascertain whether the proposed testimony is false.    See Hall,

supra, at 827-28 n.4.    Even if the client asserts that he or she

wants to present false testimony to the court, a diligent

attorney will recognize that such a statement may reflect the

pressures of a looming trial, and will not accept it at face

value without making a reasonable inquiry.

     When an attorney perceives that a client’s prospective

testimony may be false, the attorney will face conflicting


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United States v. Baker, No. 02-0334/AR


pressures in terms of the client’s constitutional right to the

effective assistance of counsel, ethical duties toward the

client, ethical duties toward the court, and applicable

statutory and regulatory procedures.     Despite substantial

attention to this problem by scholars, practitioners, and

judges, there is considerable disagreement as to the steps that

should be taken by counsel and judges to reconcile these

competing interests.    The Supreme Court, in its leading decision

on these issues, declined to provide detailed guidance with

respect to “the weight to be given to recognized canons of

ethics, the standards established . . . in statutes or

professional codes, and the Sixth Amendment.”     Nix 475 U.S. at

165.    See generally Slipakoff & Thayaparan, at 935 (summarizing

recent ethical standards, model rules, disciplinary rulings,

statutes, and judicial decisions).    Although we have touched

upon these matters in earlier cases, we have not issued

definitive holdings regarding the propriety of any particular

approach.    See United States v. Winchester, 12 C.M.A. 74, 30

C.M.R. 74 (1961); United States v. Radford, 14 M.J. 322 (C.M.A.

1982).

       There are two matters of particular importance to the

present appeal.    The first area of concern is the standard an

attorney should apply in determining whether the proposed

testimony is false for purposes of triggering any ethical


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United States v. Baker, No. 02-0334/AR


obligations.   See Hall, supra, at 827-29; Slipakoff &

Thayaparan, supra, at 942-47.   Compare United States ex rel.

Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (an attorney

must possess “a firm factual basis” that the client will commit

perjury before bringing the matter to the attention of the

court), with Shockley v. State, 565 A.2d 1373 (Del. 1989) (the

attorney must be convinced that the statement is false beyond a

reasonable doubt).   Because the “firm factual basis” standard is

sufficient to ensure that counsel has conducted an adequate

inquiry prior to initiating any action under the ethical

standards, we shall not require a higher standard than that

applied by the Third Circuit.

     The second area of concern is the question of what actions,

if any, an attorney must take if the client persists in a desire

to provide what the attorney has determined to be false

testimony.   See Hall, supra, at 830-35; Slipakoff & Thayaparan,

supra, at 947-54.    One view is that the attorney should not have

any involvement with a client who intends to taint the

proceeding through the presentation of false testimony.     Under

this view, if the client persists in the desire to testify

falsely, the attorney should ask the court for permission to

withdraw from the representation.     See AR 27-26, Rule 3.3 cmt.

     A second view is that withdrawal is too disruptive and

simply foists the issue on the next attorney.     Therefore, the


                                 17
United States v. Baker, No. 02-0334/AR


relationship should not be severed completely, but the client

should not have the assistance of counsel during the

presentation of testimony.    Under this approach, the attorney

provides non-specific notice to the court that the client will

testify in free narrative form without the benefit of questions

from defense counsel, and counsel does not refer to the

testimony during closing argument.    See, e.g., Restatement

(Third) of The Law Governing Lawyers § 120 cmt i (2000); cf. AR

27-26, Rule 3.3 cmt. (if withdrawal is not permitted, counsel

should not “lend aid to the perjury or use the perjured

testimony”); Lowrey v. Cardwell, 575 F.2d 727 (9th Cir. 1978).

The free narrative approach has been accepted by some courts and

rejected by others.    See Nix, 475 U.S. at 170 n.6; United States

v. Long, 857 F.2d 436, 446 n.7 (8th Cir. 1988); Hall, supra, at

835.

       A third view is that the free narrative approach violates

attorney-client confidentiality because the unusual format of

the testimony signals to the judge or jury that the client is

not telling the truth.    This third view focuses on the

confidentiality of the attorney-client relationship, the

client’s right to assistance of counsel, and the client’s right

to testify.    Under this approach, if the client persists in the

desire to testify, the attorney should provide unqualified

assistance, treat the matter in the same fashion as any other


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United States v. Baker, No. 02-0334/AR


evidence, and give no indication of concerns about perjury to

the court or opposing counsel.     See Hall, supra, at 832 (citing

Monroe H. Freedman, Perjury: The Criminal Defense Lawyer’s

Trilemma, in Lawyers’ Ethics in an Adversary System Ch.3

(1975)).

     The first and third options – withdrawal of counsel and

disregard of the perjury -- each attempt to address the issue by

giving primacy to one set of interests.      The second approach –

testimony without the assistance of counsel – attempts to

balance the competing interests.      Given the conflicting

interests at stake, none of the alternatives is completely

satisfactory, but the free narrative approach offers a

reasonable opportunity to achieve a fair balance.


3.   The record in the present case

     In the present case, the record reveals that there was an

off-the-record discussion between defense counsel and the

military judge from which Appellant was excluded.      The details

of this conversation were not revealed on the record, and it is

not clear whether Appellant was aware of all the details.

Although we may speculate as to the reasons which led defense

counsel to request withdrawal – a request that ultimately

resulted in Appellant testifying without the benefit of counsel

-- the record in the present case provides no direct evidence of



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United States v. Baker, No. 02-0334/AR


the circumstances that led counsel to make such a request.

Although the military judge directed defense counsel to prepare

a memorandum that might have addressed those issues, counsel

either failed to do so or failed to preserve the memorandum.

     With the record in this posture, we cannot determine

whether the actions of trial defense counsel resulted in a

denial of Appellant’s Sixth Amendment right to the effective

assistance of counsel.   Accordingly, we remand the case with

direction for a hearing pursuant to Dubay, before a military

judge other than the Judge who presided at Appellant’s court-

martial, to address the following questions: (1) What

information, if any, led defense counsel to perceive that

testimony by Appellant would present an ethical problem? (2)

What inquiry, if any, did defense counsel make?    (3) What facts

were revealed by the inquiry?   (4) What standard, if any, did

defense counsel apply in evaluating those facts?   (5) What

determination, if any, did defense counsel make with respect to

prospective testimony by Appellant in light of those facts? (6)

After making any such determination, what information and

advice, if any, did counsel provide to the Appellant?   (7) What

response, if any, did Appellant make?    (8) What information was

disclosed by the two defense counsel during their off-the-record

conversation with the military judge?




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United States v. Baker, No. 02-0334/AR


     The military judge conducting the Dubay hearing shall make

findings of facts on the foregoing questions and such other

matters as may be pertinent to the issues specified in our grant

of review.   The military judge shall also reach conclusions of

law on the specified issues.


4.   Future cases

     Given the state of the record in this case, we do not view

the present appeal as the appropriate vehicle for prescribing

detailed standards by which we will judge the constitutional

effectiveness of counsel in situations involving potential

client perjury.     The present case, however, illustrates the need

for a greater degree of guidance than provided by the present

rules.   See McCarthy & Brook, supra, at 148-53 (describing the

problems facing counsel and courts and the need for greater

clarity).    We have identified a number of steps that counsel and

military judges may consider taking to reduce the potential for

confusion and error.

     At the outset, the defense counsel should conduct an

appropriate investigation into the validity of evidence that is

likely to be offered at trial, including prospective testimony

by the accused.     If such an investigation provides the attorney

with a firm factual basis for determining that that the

prospective testimony is false, the attorney should have a



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United States v. Baker, No. 02-0334/AR


discussion with the client that reviews the facts, the basis for

the attorney’s concern, and the potential consequences for the

accused if the client persists in a desire to provide the

testimony.   The advice should cover consequences in terms of the

obligation to tell the truth, pertinent criminal sanctions,

tactical considerations at trial, and the effect of testimony in

a free narrative form.   If the accused persists, the attorney

should request an on-the-record ex parte proceeding before the

military judge, which would be attended by the accused. A motion

to withdraw should not be made or granted in any case unless the

circumstances as a whole have produced such an irreconcilable

conflict between counsel and the accused that effective

representation no longer is possible.    At the ex parte

proceeding, the attorney should advise the military judge that

the client wishes to testify and that the client will testify in

free narrative form.   The military judge should not inquire into

the reasons, but should: (1) remind the attorney of the

obligation to conduct an appropriate investigation that

demonstrates the basis for the concern; (2) ensure that the

accused understands the consequences of testifying in free

narrative form; (3) ask the attorney and the client to have a

further conversation during a recess prior to making a final

decision as to how to proceed; and (4) direct the attorney to

prepare a memorandum describing the attorney’s investigation,


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United States v. Baker, No. 02-0334/AR


factual concerns, and advice provided to the accused.    If, after

such a recess, the accused decides to proceed with the

testimony, the attorney and the accused should notify the

military judge of that decision in an ex parte proceeding.

Prior to the conclusion of the trial, the military judge should

ensure that defense counsel submits a copy of the memorandum

under seal.   The document should be attached to the record as a

sealed exhibit and should remain sealed, except to the extent

release is directed during appellate review upon an appropriate

showing and subject to appropriate protective orders.    See,

e.g., United States v. Dorman, 58 M.J. 295 (C.A.A.F.

2003)(concerning access by appellate defense counsel).

     Because the actual circumstances – including service

regulations and potentially applicable state bar ethical rules -

- may require counsel to consider variations in the suggested

standards for assessing whether the evidence is false and

related procedures for addressing the matter at trial, we

emphasize that these are available measures that may prove

useful at trial, and that we are not establishing mandatory

requirements at this time.   In the course of adapting these

measures to the needs of a particular case, the military judge

and counsel for the parties should keep in mind their respective

responsibilities with regard to the truth-seeking purposes of a




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United States v. Baker, No. 02-0334/AR


trial, consistent with applicable constitutional, statutory, and

ethical considerations.



                           III. DECISION

     The decision of the United States Army Court of Criminal Appeals

is set aside.   The record of trial is returned to the Judge Advocate

General of the Army for submission to a convening authority for a

hearing under pursuant to DuBay consistent with this opinion.     The

military judge at such hearing shall make findings of fact and

conclusions of law and then return the record of trial to the Court

of Criminal Appeals for further review of the specified issues.




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United States v. Baker, No. 02-0334/AR


     CRAWFORD, Chief Judge (dissenting):

     In keeping with Supreme Court precedent, and in the

interest of judicial economy, I would apply Strickland v.

Washington, 466 U.S. 668 (1984), and employ a harmless error

analysis before returning the case for a DuBay hearing.    See

United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1962).

Because counsel’s “ineffectiveness” had no impact on the

fairness of Appellant’s proceeding, I would find that the error

was harmless.

     Both the Government and Appellant would benefit from a

Strickland analysis in this case.    Appellant’s allegation of

ineffective assistance of counsel waives the attorney/client

privilege and the confidential communications that transpired

between Appellant and his counsel.    United States v. McClain, 50

M.J. 483, 488 (C.A.A.F. 1999).   Thus, Appellant would enter the

DuBay hearing without these safeguards and potentially subject

to a future perjury prosecution.    Moreover, applying Strickland

avoids putting this Court into a speculative mode regarding how

these inquiries should be handled in the future.

     It is important to recognize at the outset that the purpose

of the trial, as well as the roles of counsel, Appellant, and

the trial judge, vary depending on, among other things, who the

fact finder is in each case.   I agree with the majority that the

purpose of a trial is truth seeking “consistent with applicable
United States v. Baker, No. 02-0334/AR


constitutional, statutory, and ethical considerations.”             ___

M.J. (24).

      The Supreme Court has long recognized that “[a]ll perjured

relevant testimony is at war with justice, since it may produce

a judgment not resting on truth.              Therefore it cannot be denied

that it tends to defeat the sole ultimate objective of a trial.”

In re Michael, 326 U.S. 224, 227 (1945).             A trial must rest upon

truth finding and a defendant does not have the right to present

perjuried testimony.       Nix v. Whiteside, 475 U.S. 157, 175

(1986).   When there is a trial by jury -- but a finding by a

trial judge of perjury beyond a reasonable doubt, or a firm

factual basis for such a finding -- the trial judge has the

right to preclude the defendant from testifying at all.             This

purpose and its consequence must be recognized,1 even though


1
  The full Article 39(a) transcript indicates that Appellant implicitly
admitted his testimony was inconsistent.

      MILITARY JUDGE: Now, they [Appellant’s defense counsel] haven’t told
me anything more than that, but what I read into that -- and this is what I’m
reading into it -- is that they expect or they’re thinking that you are going
to testify inconsistently with what you have said before. Okay?

      ACCUSED:   Yes, ma’am.

      MILITARY JUDGE: Just based on the fact that they want off the case,
that’s the reason I think it is.

      What I’m tellin you is this, that --

      Captain [B], am I right? Is the court right that you do not even feel
that you can ethically put your client on the stand and not even ask him any
questions, and just --?

      CPT [B]:   That’s correct, ma’am.

      MILITARY JUDGE:   Captain [M], is the same true for you?


                                          2
United States v. Baker, No. 02-0334/AR


there is a dispute among the courts as to the roles of the

various participants depending on the factual scenario.      Because

of this dispute, this Court should address each case on an

individual basis.

      “The military, like the Federal and state systems, has

hierarchical sources of rights,” and chief among those sources

is the Constitution of the United States.      United States v.

Lopez, 35 M.J. 35, 39 (C.M.A. 1992).    In rendering our

decisions, we look to the highest source of authority, “unless a

lower source creates rules that are constitutional and provide

greater rights for the individual.”    Id.

      The Sixth Amendment to the Constitution provides: “In all

criminal prosecutions, the accused shall enjoy . . . the

Assistance of Counsel for his defense.”      In Strickland, the

Supreme Court outlined a two-prong test to determine if

counsel’s assistance to the accused was ineffective, and

therefore violated the Sixth Amendment.

      First, the defendant must show that counsel’s
      performance was deficient. This requires showing that
      counsel made errors so serious that counsel was not
      functioning as the "counsel" guaranteed the defendant
      by the Sixth Amendment.

      Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires
      showing that counsel’s errors were so serious as to



      CPT [M]:   Yes, ma’am.

(Emphasis added.)

                                 3
United States v. Baker, No. 02-0334/AR


     deprive the defendant of a fair trial, a trial whose
     result is reliable.

466 U.S. at 687 (emphasis added).     The Court added that “if it

is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which we expect will often be

so, that course should be followed.”     Id. at 697 (emphasis

added).

     In Nix, the Court determined that counsel’s threat to

withdraw if the defendant perjured himself did not “establish

the prejudice required for relief under the second strand of the

Strickland inquiry.”   Defense counsel is ethically obligated “to

take steps to persuade a criminal defendant to testify

truthfully, or to withdraw,” and in so doing does not deprive

the defendant of his Sixth Amendment right to counsel.     Id. at

173-74.

     In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Court

again interpreted Strickland, opining that testing for prejudice

involves more than a determination that the outcome would have

been different.   Rather, “[i]t focuses on the question whether a

counsel’s deficient performance renders the result of the trial

unreliable or the proceeding fundamentally unfair.”     Id. at 372.

A proceeding is only unfair if counsel’s ineffectiveness

“deprive[d] the defendant of any substantive or procedural right

to which the law entitles him.”   Id.    “To set aside a conviction

or sentence solely because the outcome would have been different

                                  4
United States v. Baker, No. 02-0334/AR


but for counsel’s error may grant the defendant a windfall to

which the law does not entitle him.”   Id. at 369-70.

      Applying this standard to the facts at hand, it is clear

that Appellant was not prejudiced by counsel’s actions, as there

was no impact at all on the fairness of the proceeding.     As the

chart below indicates, although Appellant was charged with

twelve specifications, all of which he contested, he was found

guilty of only four.

      Setting aside Appellant’s testimony, the documents admitted

at trial and the testimony from Appellant’s chain-of-command,

civilian supervisor and peers, prove his guilt of the guilty

findings below beyond a reasonable doubt of four of the twelve

specifications:

      Charge                   Spec      Plea      Finding

I     Attempted larceny        only      NG        Guilty

II    Absence from duty        1         NG        NG
                               2         NG        Guilty
                               3         NG        NG
                               4         NG        NG

III   Willful disobedience     1         NG        NG
                               2         NG        Guilty
                               3         NG        Guilty

IV    Willful disobedience     1         NG        NG
                               2         NG        NG

V     Dereliction of duty      only      NG        NG

VI    Larceny                  only      NG        NG




                                   5
United States v. Baker, No. 02-0334/AR


     Charge I and its specification -- attempted larceny of over

$369 worth of ink cartridges.    Often Appellant was seen carrying

his own personal computer but never a printer.   When buying

supplies for the supply store, he bought several ink cartridges

costing more than $9 each that did not fit any of the units

printers.   Master Sergeant (MSG) Randall Hyde told Appellant not

to buy these cartridges because they were useless.   When these

cartridges were found to be missing, MSG Hyde asked Appellant

where they were and “he gave me a little smile on his face.

Okay?   And I told him to get my toner cartridges now and bring

them back to the Supply Room.”   The cost of these was

approximately $369.   Later, even though Appellant had been told

not to buy any more, MSG Hyde noticed that three more cartridges

were bought.

     Charge II, specification 2 -- absences.   Appellant’s

supervisor noted Appellant’s lunch breaks between September 1st

and 17th, lasting more than an hour and a half without seeking

permission from the supervisor or giving an explanation for the

absence upon his return.   Mrs. Sheila Speers McCaskill testified

he “never took the [normal] one hour lunch,” but, rather, three-

hour lunches.   Nor did Appellant seek permission for these

extended breaks.   Many times he was given several simple tasks

that would take 15 to 20 minutes, but he would be gone at least




                                  6
United States v. Baker, No. 02-0334/AR


an hour.   During some of these instances, he took a government

vehicle and Ms. McCaskill had no idea of his whereabouts.

     Charge III, specification 2 and 3 -- haircut orders.

Brigadier General Lambert, Lieutenant Colonel (LTC) Kirk A.

Moeller’s supervisor, was disappointed with Appellant’s

appearance and haircut and told LTC Moeller to make sure that

Appellant got a haircut.   Appellant did not, and was counseled

for unacceptable behavior by refusing to get a haircut.   He was

given a second order which he again disobeyed.   A third order

was given to him.   This time to ensure he obtained a haircut,

the acting first sergeant agreed to accompany Appellant to the

barbershop.   However, Appellant left the area after being told

to wait by the acting first sergeant.    The acting first sergeant

checked the two barbershops at Patch Barracks and did not find

Appellant on either occasion.    When he eventually saw Appellant,

he noted his haircut did not pass military standards.   His

appearance was so poor he was told not to return to the office

until he had a proper haircut.

     Moreover, given that Appellant was convicted of only four

specifications, far from harming Appellant, counsel’s remedial

actions, and the resultant sequence of proceedings, assisted in

a relatively successful defense.




                                   7
United States v. Baker, No. 02-0334/AR


     Given the absence of prejudice to Appellant, I would find

harmless error and affirm the decision below.   Accordingly, I

dissent from the lead opinion.




                                 8
