(dissenting):
I credit the majority with addressing the situation where members of the trial defense bar sua sponte reveal attorney-client confidences, needlessly, during the post-trial review process. See generally United States v. Williams, 57 M.J. 581 (N.M.Ct.Crim.App.2002). Defense counsel’s duties at this stage, per Rule for Courts-Martial 1106(f), Manual for Courts-Martial, United States (2008 ed.), in no way call for the spontaneous revelation of attorney-client confidences. This case may well signal a misapprehension of Blunk1 and its progeny. In endeavoring to address this misapprehension, however, the majority conflates defense advocacy guidance surrounding a request for a punitive discharge during presenteneing, with a convening authority’s action upon an already-adjudged punitive discharge, joined at some unknown time by an anomalous post-trial submission from the appellant’s own attorney. A practical remedy is crafted, but it is disconnected from the source of the problem.
Consistent with Williams, I find error with the trial defense counsel in disclosing the confidential letter. Having found error, I dissent from the finding of material prejudice by the majority, and therefore everything that necessarily flows from that finding.
Trial defense counsel’s official response to service of the staff judge advocate’s recommendation on 29 November 2010 was to clearly indicate he had no comments, corrections, nor matters to submit per R.C.M. 1105 or 1106. The trial defense counsel’s post-trial affidavit, ordered by this court, does not indicate when he made his unauthorized disclosure, only that he did so.
There is certainly an enduring and practical basis for this court to apply a presumption of regularity to document submission and review by convening authorities (CAs). However, it challenges the credibility of that practice to now extend it to a patently irregular submission, received from the trial defense counsel and appended to the record at some undetermined time, when weighed against an affirmative statement that there would be no submission.
On the state of this record, and absent more specific indicia, I cannot conclude that the CA, in taking his action, axiomatically introduced material prejudice to the appellant’s substantial rights. Cf. United States v. Barbee, No. 200900452, unpublished op. at 3 (N.M.Ct.Crim.App. 11 Mar. 2010). The listing of documents the CA considered, (CA’s Action of 7 Dec 2010; Slip op. at 8), which the majority concludes connects the CA with the appellant’s confidential letter, is, with minor variation and no greater specificity, nothing more than a listing of the very matters a CA must consider in taking his action per R.C.M. 1107(b)(3).
The majority is correct in seeking to end any practice, with or without its genesis in Blunk, which yields the unauthorized disclosure of attorney-client confidences. In seeking to positively impact the practices of the trial defense bar, the majority takes the conspicuously indirect route of invalidating the action of a CA who bears no demonstrated connection to the trial defense counsel’s unauthorized disclosure. The error is apparent. However, I cannot join in the majority in their leap to a finding of material prejudice. The state of the record is that the appellant had nothing to submit prior to the CA’s action. The staff judge advocate so advised the CA. I respectfully dissent and would affirm the findings and the sentence as approved by the CA.
. United States v. Blunk, 37 C.M.R. 422, 1967 WL 4281 (C.M.A.1967).