Petition for Writ of Certiorari — Newak v. United States

IN THE

Supreme Court Of The United States

October Term, 1989

JOANNE C. NEWAK,

Petitioner,

vs.

UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

FAITH A. SEIDENBERG

Seidenberg, Strunk and

Goldenberg

246 East Water Street

Syracuse, New York 13202

(315) 422-0144

Counsel of Record

November 7, 1989

Appellate Productions, Inc.

Syracuse, New York

QUESTION PRESENTED

Whether an appellate court which found prejudicial error,

based upon conflict of interest in a single criminal matter

where a defense attorney represented both Petitioner and a

government witness against Petitioner, could hold such error

fatal to some charges but harmless to-others.

TABLE OF CONTENTS

Page

QUESTION PRESENTED

OPINIONS BELOW 1-2

JURISDICTION 3

CONSTITUTIONAL PROVISIONS

INVOLVED 4

STATEMENT OF THE CASE 5-13 |

REASONS FOR GRANTING |

THE WRIT 14

t. A FINDING OF HARMLESS-ERROR WHERE CRIMINAL

DEFENSE COUNSELS’ DUAL REPRESENTATION

WAS PREJUDICIAL TO DEFENDANT THROUGHOUT

THE PROCEEDING IS A DIRECT CONTRADICTION

TO SUPREME COURT’S RULINGS 14-18

Il. WHEN THE COURT OF MILITARY APPEALS

CONCLUDED THAT DEFENSE COUNSEL'S

CONFLICT OF INTEREST RESULTED IN “TAINTED

EVIDENCE" IT REDUCED A QUESTION OF

FUNDAMENTAL CONSTITUTIONAL RIGHTS TO ONE

OF MERE EVIDENTIARY STANDARDS 19-20 |

CONCLUSION 21 |

Appendix............ set forth in separate cover

errr

TABLE OF AUTHORITIES

Cases:

Chapman v. California, 386 U.S. 18 (1967)

Cuyler v. Sullivan, 446 U.S. 335 (1979)

Glasser v. United States, 315 U.S. 60 (1942)

Holloway v. Arkansas, 435 U.S. 475 (1977)

Kastigar v. United States, 406 U.S. 441 (1971)

United States v. Newak, 15 M.J. 541

(1982)

United States v. Newak, 24 M.J. 238 (1987)

ion isions:

United States Constitution Amendment V

United States Constitution Amendment VI

10 USC Section 817

10 USC Section 867(b)(3)

28 USC Section 1259 (1)

ses

- il -

1

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

JOANNE C. NEWAK, Petitioner,

vs.

UNITED STATES, Respondert.

PETITION FOR A WRI OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The Petitioner, Joanne C. Newak, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in the case

entitled, United States v. Newak on September 8, 1989.

OPINIONS IN COURTS BELOW

The following opinions have been issued in the Courts

below, and are reprinted in the Appendix:

1. United States v. Newak, ACM 23544, decision of

General Court-Martial, Military Judge Robert H. Leonard,

11 March 1982, set forth in the Report of Result of Trial,

dated 11 March 1982. Unpublished. Reprinted in the

Appendix at pages 70 to 72.

2. United States v. Newak, Staff Judge Advocate’s

Review of Trial by Court Martial, 6 May 1982. Unpublished.

Reprinted in the Appendix at pages 75 to 103.

2

3. United States v. Newak, United States Air Force Court

of Military Review, 14 December 1982. Published at 15 M.J.

541 (AFCMR 1982). Reprinted in the Appendix at pages 109

to 115.

4, United States v Newak, United States Air Force, Action

of the Judge Advocate General, dated 23 March 1983 (ACM

23544). Unpublished. Reprinted in the Appendix at page 116.

5. United States v. Newak, United States Court of Military

Appeals, 13 July 1987. Published at 24 M.J. 238 (CMA

1987). Reprinted in the Appendix at pages 117 to 132.

6. United States v. Newak, United States Air Force Court

of Military Review, 16 October 1987. Unpublished.

Reprinted in the Appendix at pages 135 to 141.

7. | United States v. Newak, United States Air Force Court

of Military Review, 6 January 1989. Unpublished.

Reprinted in the Appendix at pages 149 to 155.

8. United States v. Newak, United States Court of Military

Appeals, 8 September 1989. Unpublished. Reprinted in the

Appendix at pages 156 to 157.

3

JURISDICTION

Jurisdiction in the United States Supreme Court is

invoked upon 28 USC Section 1259(1), seeking review of a

decision of the Court of Military Appeals dated 08 September

1989, and entered on said date, affirming Petitioner's

conviction after court-martial under jurisdiction of 10 USC

Section 817 on March 10 and 11, 1981.

This petition for certiorari is filed within 60 days of the

decision of the Court.

4

TEXT OF CONSTITUTIONAL PROVISICINS

ni ion

Amendment §

No person shail be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to be

a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shail private

property be taken for public use, without just compensation.

United States Constitution

Fifth Amendment

Amendment 6

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel

for his defense.

United States Constitution

Sixth Amendment

————

bs)

STATEMENT OF THE CASE

Basis of Federal Jurisdiction

The Petitioner was tried before a United States Air Force

Court-Martial under jurisdiction of 10 USC Section 817 on

March 10 and 11, 1982. The Report of Result of Trial was

issued by the judge who sat at the court-martial on March

11, 1982. See Appendix, pages 70 to 72.

The conviction and sentence was appealed to the Uni‘ed

States Air Force Court of Military Review, where the

conviction and sentence were affirmed on December 14,

1982. See Appendix, pages 109 to 115.

The Court of Military Appeals reviewed the decision

under jurisdiction based on 10 USC Section 867 (b)(3), and

on 13 July 1982 reversed in part, and remanded the case to

the Military Court of Review for further consideration. See

Appendix, pages 117 to 132. The Court by order dated 19

August 1982 retained jurisdiction. See Appendix, pages 133

to 134. The Court of Military Review affirmed the remaining

convictions on 16 October 1987, and ordered a rehearing on

sentencing. See Appendix, pages 135 to 141.

The Court of Military Review again affirmed the

remaining convictions after resentence on 06 January 1989.

See Appendix, pages 149 to 155.

The Court of Military Appeals affirmed the decision of

the Court of Military Review on 08 September 1989. See

Appendix, page 156 to 157.

Facts of the case

|

On or about June 17, 1981, Airman First Class Donna

L. Ryan, who was then stationed at Hancock Field, New

York, was arrested on a driving while intoxicated charge. At

some point after her arrest, Ryan began to act as an

informant for, and provide information to, the Air Force Office

ee

6

of Special Investigation. As an informant, she reported that

Airman John Liles, Lieutenant Joanne Newak and Senior

Airman Lynne Peelman, were using controlled substances in

the vicinity of Hancock Airfield where they were stationed

with the U.S. Air Force. An agent of the Air Force Office of

Special Investigation contacted Newak, Peelman and Liles,

and advised them of their rights. All three denied the

reported activities.

In early September, 1981, Newak, Peelman and Liles

sought legal counsel at Griffiss Air Force Base. Area

defense counsel Captain John Powers was assigned to all

three. He met with Newak and Peelman and established an

attorney-client relationship with both. At about the same

time, Powers also undertook representation of Liles. Powers

became aware of an impending transfer in late August or

early September of 1981. Starting in either September or

early October, Powers brought Captain John Smith to

interviews with Newak, Peelman and Liles as co-counsel.

Smith established an attorney-client relationship with each of

them and later represented each as sole counsel.

On or about Tuesday October 20, 1981, Smith entered

into negotiations with government counsel. These

negotiations resulted in testimonial immunity being offered to

two of his three clients, Peelman and Liles. At about this

time he told Peelman and Liles that "Newak was going down

the tubes", and to stay away from her. He specifically urged

Peelman to co-operate with the government.

On or about Friday, October 23, 1981, Smith withdrew

from the defense of Newak. Smith continued to represent

Peelman throughout the proceeding, including the trial of

Newak’s court-martial, and Newak was assigned other

defense counsel. Liles also was given different defense

counsel at about this time.

Charges | to IV of the original charge sheet, set forth

in the Appendix at pages 1 to 7, alleged various drug related

offenses and behavior unbecoming an officer, all of which

were based upon accusation made by Ryan, were preferred

against Newak on October 23, 1981.

7

Major Maurice Deaver was assigned as Investigating

Officer on these charges, and he conducted an Article 32

hearing on November 6, 1981. At this hearing, Peelman

refused to testify upon advice of Smith, and Liles also

refused to testify based upon advice of his defense counsel.

In his report of the same date, set forth in the Appendix at

pages 7 to 22, Deaver concluded there was not enough

evidence to proceed to trial on the charges. He specifically

recommended steps be taken to secure additional testimony,

and, if such testimony could be obtained, the matter then be

reopened.

After the completion of the initial Article 32 hearing,

Smith finalized negotiations for Peelman’s testimonial

immunity, thereby assisting in the prosecution of his former

client Newak. In December, based upon the information

obtained from Peelman, which had been provided to the

government throught Smith’s encouragement, additional

charges based upon a sexual relationship between Newak

and Peelman were added to the charges. These charges are

set forth in the additional charge sheet, set forth in the

Appendix at pages 23 to 28.

On January 6, 1982, a second Article 32 investigation

was conducted by Investigating Officer Colonel Lawrence

Gingold. With grants of immunity, Peelman and Liles both

testified at this hearing, and the Investigating Officer in his

report, set forth in the Appendix at pages 32 to 47,

recommended that Newak be tried by court-martial.

Newak entered pleas of Not Guilty to all of the

charges and their specifications.

On 10 and 11 March 1982, Petitioner was tried by

general court-martial with a military judge sitting alone.’ At

the trial, Peelman was the chief prosecution witness against

Newak. She was advised by Smith throughout her

testimony. Smith was called as a defense witness at the

trial, and he admitted that he had represented Newak on the

same charges. Peelman was never charged or prosecuted.

Liles did not testify at the trial, but his written testimony from

8

the second Article 32 hearing, obtained under his grant of

immunity, was used at the trial. The trial judge at the court-

marital found Newak guilty of all of the charges and the

specifications referred to trial.’

Lt. Newak was sentenced to dismissal, confinement at

hard labor for seven years, and forfeiture of all pay and

allowances.

During administrative reviews, several charges were

dismissed and several were reduced, and her sentence was

eventually reduced to three years.?

In the second Article 32 hearing, when the government

used evidence which was derived from Peelman and Liles,

who had been represented by Newak’s former defense

attorney, Petitioner challenged the use of that testimony as

violative of her constitutional rights. The Investigating Officer

accepted the offered proof, and did not consider the

constitutional challenge, stating “he was making no

recommendation on this matter which does not directly relate

to the form of the charges and specifications and the truth

thereof."

As noted above, during the course of the trial Smith

was called as a witness for the defense. He testified

concerning the matter of immunity:

Q: Did you bring up the subject of immunity?

A: With whom?

Q: With the Base Staff Judge Advocate?

A: Not directly, no. They brought it up to me.

Q: And was there any bargaining on your part,

between acting for Airman Peelman vis-a-vis the Base

Staff Judge Advocate at Hancock?

A: | don’t quite understand.

Q: In other words, did you say - did you go in and

say, "If you’ll give us immunity, no prosecution of

Airman Peelman, Airman Peelman will roll on

Lieutenant Newak," or anything like that?

trae

9

A: No, not directly. It was back and forth. They

were trying to figure out who to work out immunity

with. li lient Ai n Iman

ror wh wanted me to work

Out for her.

(Emphasis added.)

United States v Newak, 24 M.J. at 240.

In addition, as was noted by the Court of Military

Appeais in its decision, Smith acknowledged during the trial,

that while representing Peelman, his advice to her to

cooperate under the anticipated grant of testimonial immunity

may have been affected by confidences entrusted by Newak,

as was revealed by this colloquy with the military judge:

Q: Were you ever told by Captain Powers what

Lieutenant Newak’s version of what the potential

offenses was?

A: Yes, sir.

Q: _ So, Captain Powers did relate to you what

Newak, what Lieutenant Newak had told him about

these offenses?

A: Yes, sir.

Q: Did you ever reveal this information that Captain

Powers told you about Lieutenant Newak’s version of

the offenses, to Airman Peelman?

A: Not consciously, sir.

Q: What do you mean by not consciously?

A: | never took that information and directly related

to Airman Peelman.

Q: Do you feel that you might have unconsciously

done so?

A: | feel that information may have impacted on

my conversations with Airman Peelman.

Q: In what way?

A: Well, after | was separated from Lieutenant

Newak, the possibility of immunity came up for Airman

Peelman, and | knew some things about Lieutenant

Newak that may have influenced how | recommended

0

10

to Airman Peelman that she should go.

United States v Newak, 24 M.J. at 240.

Petitioner’s motion at the trial to dismiss all charges

based upon the violation of her constitutional right to

effective assistance of counsel was denied by the judge.

In her reply to the Staff Judge Advocate’s Review of

the trial by court-martial, set forth in the Appendix at pages

75 to 103, Petitioner renewed her motion, which was again

denied.

Petitioner raised the issue of ineffective assistance of

counsel in her appeal to the Air Force Court of Military

Review. The court affirmed the conviction and sentence as

approved, on December 14, 1982, in Uni tates v. Newak

15 M.J. 541.

Petitioner raised the issue again on appeal to the

Court of Military Appeals. In its decision of 13 July 1987, 24

M.J. 238, the court found that Smith’s actions constituted a

conflict of interest, which was prejudicial to Newak. The court

observed “In short, because Captain Smith was not free to

to argue against Peelman’s interest, he was not

free to represent Newak adequately."

United States v Newak, 24 M.J. at 243.

The court observed that Smith’s conduct with respect

to the matter of immunuity amounted to abandonment of

Newak. Unit tates v Newak, 24 M.J. at 244.

In effect, although Newak though she was being represented

by Smith, she was in reality without assistance of counsel

during a crucial stage of the proceedings.

The court determined that as a consequence of the

conflict of interest,

“[t]he testimony of Peelman and any evidence or

information derived therefrom was tainted and should

not have been admitted in evidence at the trial."

11

United States v Newak, 24 M.J. at 244.

The court found that the findings of guilty that arose

from Peelman’s testimony could not stand. The court

remanded the case to the Judge Advocates office for the

Court of Military Review for determination as to whether

independent evidence existed upon which those charges

could be reprosecuted. In addition, the court noted that the

issue of possible "spillover" of the taint from the affected

charges to the remaining charges had not been considered

by the Court of Military Review, and remanded the case to

the court for review.

The court instructed:

The record of trial is returned to the Judge Advocate

General of the Air Force for remand to that court for

consideration of the issue of whether the remaining

findings of guilty were tainted by the actions of

defense counsel. If they were, a rehearing may be

ordered on all charges and specifications which were

approved by the convening authority. If they were not

tainted, a rehearing may be ordered on the

specifications and Charges affected by the decision of

this Court and the sentence. If a rehearing on findings

is deemed impracticable, the affected Charges and

specifications may be dismissed. If any specifications

remain, a rehearing on sentence may be ordered.

United States v Newak, 24 M.J. at 244.

While the Court of Miltary Appeals addressed at some length

Smith’s conduct during the course of the pretrial stages of

the proceedings, and his improper use of information he

derived from his representation of Newak, the court failed

to recognize the impact such conduct had on Newak’s

prosecution. The court noted Smith’s conduct impacted on

every phase of the case, including the decision to prosecute

Newak in a court-martial. The remedy the court fashioned

failed to address the actual nature of the harm inflicted on

12

Newak as a result of her former’s counsels conduct. In

finding that the error was harmless with respect to the

charges on which Peelman did not testify, the court placed

an improper restriction on the right to effective assistance of

counsel.

Upon remand to the Court of Military review, Petitioner

contended all of the findings of guilty should have been

dismissed inasmuch as the actions of her former defense

counsel were so pervasive and carried on throughout all of

the essential states of the proceedings as to render it

impossible to limit the taint to any specific charges. As a

consequence, the “spillover” from her military counsel's

ineffective representation could not be divided by charges

and should have been found by the court to taint the entire

proceedings.

On remand, the Court of Military Review reviewed the

record without conducting an evidentiary hearing. On 16

October, 1987, the Court issued its decision.

It concluded with respect to alternative untainted evidence

concerning the charges on which Peelman has testified, “Our

review of the record and the pretrial investigation convinces

us that no such evidence exists." (Opinion of the Court of

Military Review, 16 October 1987, set forth in the Appendix

at pages 135 to 141. In addressing the "spillover" issue, the -

Court determined that the issue was one of first impression,

and decided the issue based upon its analogy to cases

involving improper use of an accused’s immunized testimony.

Based upon this review it concluded that there was an

"independent" basis for the remaining charges. The Court

dismissed the charges which were based upon Peelman’s

testimony, affirmed the finding of guilty on the remaining

offenses charged, and ordered a rehearing on the sentence.

The sentence was affirmed upon resentencing on 3

May 1988, except for reduction of the confinement to 14

months (the time served). Newak appealed the October 16,

1987 decision of the Court of Military Review and her

resentencing to the Court of Military Review. In its decision

13

of 6 January 1989, that Court again upheld the remaining

offenses and the sentence.

On review the Court of Military Appeals affirmed the

decision of the Court of Military Review. Lt. Newak now

seeks a Writ of Certiorari to the United States Supreme

Court.

14

REASONS FOR GRANTING THE WRIT

!

WHERE A CRIMINAL DEFENSE COUNSELS’ DUAL

REPRESENTATION WAS HELD TO BE PREJUDICIAL TO

DEFENDANT, A FINDING OF HARMLESS ERROR AS TO

PART OF THE CHARGES BROUGHT IN A SINGLE

PROCEEDING IS A DIRECT CONTRADICTION TO

SUPREME COURT'S RULINGS.

The decision of the Court of Military Appeals in this

case is in direct contradiction to this Court’s holding-that joint

representation of conflicting interests by a defense attorney

can never be harmiess error. Holloway v. Arkansas, 435

U.S. 475 (1977); Cuyler v. Sullivan, 446 U.S. 335 (1979).

After a trial by court-martial, Petitioner was convicted of all

charges. Upon appeal, the Military Court of Appeals held

the dual representation of the defendant and a chief

prosecution witness constituted a conflict of interest and was

reversible error as to some of the convictions but harmiess

as to others. United States v. Newak, 24 M.J. 238 (1987)

The court also ruled that the lower military court could

decide whether the convictions which it set aside could be

reheard with evidence which might be “untainted” by the

conflict. Id. at 244.

This Court’s previous cases have established that

where an actual conflict of interest prejudices a criminal

defendant, there is a breach of the defendant’s right to

effective assistance of counsel. Such breach is a violation

of the Fifth Amendment guarantee of due process which

assures there shall be no governmental deprivation of life,

liberty or property without due process and the Sixth

Amendment guarantee of counsel for criminal defendants.

In Chapman _ v. California, 386 U.S. 18 (1967) the

guarantee of counsel was held to be among those

“constitutional rights so basic to a fair trial that their infraction

en neem

15

can never be treated as harmless error." Id. at 23.

When considering the issue of dual representation

involving an actual conflict of interest in criminal cases where

prejudice to the defendant occurred, this Court has required

reversal. Holloway v. Arkansas, 435 U.S. 475 (1977). The

Supreme Court ruled that where an error occurs at trial, the

effect can be traced,

[b]ut in a case of joint representation of conflicting

interests the evil--it bears repeating--is in what the

advocate finds himself compelled to refrain from

doing, not only at trial but also as to possible

pretrial plea negotiations and in the sentencing

process. . .. And to assess the impact of a

conflict of interests on the attorney's options,

tactics, and decisions in plea negotiations would

be virtually impossible. Thus, an inquiry into a

claim of harmless error here would require, unlike

most cases, [when the error occurs on the trial

record] unguided speculation.

Id. at 490-491 (emphasis added.)

Holloway is an interpretation of the seminal dual

representation case of Glasser v. United States, 315

U.S. 60 (1972), in which the Court stated, "The right to

have the assistance of counsel is too fundamental and

absolute to allow courts to indulge in nice calculations

as to the amount of prejudice arising from its denial."

Id. at 76. Yet that is exactly what the military courts

have done in the instant case, where certain convictions

were set aside, while others were allowed to stand.

Even if this Court is convinced that in cases of

multiple convictions at a single trial, prejudice from dual

representation which involved actual prejudice could be

harmless to some charges, such a rule should ‘not be »

promulgated and applied in this case. Here, there was

actual prejudicial conduct which affected the petitioner —

from the earliest stages of the proceedings. The Court

16

of Military Appeals discussed the improper actions of

Petitioner's Counsel in the pretrial stages of her case, ,

particulary during negotiations with the prosecutor. The |

Court noted:

The Government has sought to downplay these

exchanges by characterizing the immunity not as a

matter of negotiation but rather as a “fait accompli.”

This contention overlooks the realities of the criminal

justice process. We are aware that often the best

defense that can be provided for a person accused

of a crime is to offer to assist investigators and

prosecutors in return for leniency in some form such

as dismissal of charges, and reduction or

suspension of sentence. The extent of leniency that

can be obtained often varies in proportion to the

extent of information being provided and the

prominence of the person who is the subject of that

information.

United States v Newak, 24 M.J. at 242.

The court also made the following observations

concerning Smith's conduct:

In light of the important role of an attorney in

advising his client as to cooperation with prosecutors

and in negotiating for such benefits as transactional

versus testimonial immunity, or a reduced sentence,

we Cannot gloss over Smith's role as Peeiman’s legal

advisor. If he performed that role in a professional

manner, his performance almost inevitably

compromised his role as Newak’s legal advisor.

Conversely, if he acted effectively for Newak, he

could not have performed suitably for Peeiman.

United States v Newak, 24 M.J. at 242.

The court concluded:

Unfortunately, Captain Smith's sacrifice of appellant's

17

interests did not end with this sin of omission but

extended, as well, to subsequent sins of commission.

After he had severed his relationship with appellant,

he continued to represent Peelman in this matter and

actively to advise her and encourage her to act in

her own self-interest. Sadly for Smith - and for

appellant - it is clear that those interests were not

parallel to appellant's; indeed, they ran to a point of

inevitable confrontation. Under these circumstances,

Captain Smith aided the successful prosecution of

his former client just as surely as if he had sat at the

trial counsel's table and just as surely, this was

improper. See generally Art. 27(a), UCMJ, 10 U.S.C.

s 827(a) ("nor may any person who has acted for

the defense act later in the same case for the

prosecution"); accord United States v. Stubbs, 23

M.J. 188 (C.M.A. 1987).

United States v Newak, 24 M.J. at 242.

In discussing Smith’s impediment to pretrial

negotiations and plea bargaining on Newak’s behalf,

the Court of Military Appeals stated, “In short, because

Captain Smith was not free to argue against Peelman's

interest, he was not free to represent Newak

adequately ...." United States v Newak, 24 M.J. at 243.

Clearly, if defense counsel had acted in Newak’s

best interest during the pre-trial stages of the

proceedings, there might not have been any trial. The

Supreme Court's decisions since Glasser v. United

States in 1942, have held that judgment must be

reversed where a criminal defendant has been

prejudiced by his counsel's conflict of interest. 315 U.S.

60 (1942). Where actual harm is done to the defendant

during the investigation and the trial, the court

thereafter should not permit inquiry to determine if

18

some part of the case was left unaffected. The decision

of the Court of Military Appeals directly contradicts this

precedent and a writ of certiorari should be granted.

19

ul

WHEN THE COURT OF MILITARY APPEALS

CONCLUDED THAT DEFENSE COUNSEL’S CONFLICT

OF INTEREST RESULTED IN "TAINTED

EVIDENCE" IT REDUCED A QUESTION OF

FUNDAMENTAL CONSTITUTIONAL

RIGHTS TO ONE OF MERE EVIDENTIARY

STANDARDS.

The action of the Court of Military Appeals in

considering the constitutional violations described in the

argument above as merely an evidentiary issue is a

grievous Offense against an individual's constitutional

rights. To permit courts to treat a violation of such a

fundamental constitutional right as the Sixth

Amendment guarantee of effective assistance of

counsel in such a casual manner, denigrates the

importance of this right in our system of justice.

In Kastigar v United States, 406 U.S. 441 (1972), this

Court established a standard to assure that the

prosecution did not use any evidence acquired from

immunized testimony. However, when the constitutional

violation results from dual representation involving an

actual prejudice from counsels representation of a

defendant and a prosecution witness, it is inappropriate

to apply Kastigar standards. In Kastigar, this Court was

concerned with upholding the Fifth Amendment

prohibition of compelled self-incriminatory testimony

while still giving reasonable rein to law enforcement

personnel. Kastigar requires that one need merely

show that he testified under a grant of immunity to shift

to the government the heavy burden of proving an

independent source for all evidence. 461 U.S. at 461.

But in a case where confidential information, gleaned

through a former defense counsel's advice to a

government witness testifying with immunity is used

against the defendant, the resulting prejudice to the

20

defendant is too pervasive to permit such a cure.

Although Newak’s case does involve the use of

immunized testimony, the constitutional violation here

is much more egregious. As the Court of Military

Appeals stated, Newak’s former attorney acted as a

prosecutor in this case, "just as surely as if he had sat

at trial counsel’s table." United States v. Newak, 24

M.J. at 243. The prosecution was able to take

advantage of confidential information known to Smith

through his prior representation of Newak. This

constitutional violation goes to the very core of a

defendant’s right to effective assistance of counsel and

due process, and no semblance of due process

remains in a proceeding in which the use of such

testimony is permitted.

lf the Court of Military Appeals’ ruling is permitted to

stand, the significance of this grave constitutional

violation will be reduced to an evidentiary error.

Where the basic constitutional rights to due process

and effective assistance of counsel are violated in a

criminal prosecution, the remedy must be

commensurate with the error. In this case the harm

went beyond mere evidentiary taint. In allowing an

evidentiary remedy, the Court of Military Appeals has

undermined the constitutional protection afforded to all

citizens under the Sixth Amendment guarantee of the

right to effective assistance of counsel. The Court

should grant this petition to assure such a wrong is not

perpetuated.

24

CONCLUSION

For these various reasons, this Petition for Certiorari

should be granted.

Respectfully submitted,

FAITH A. SEIDENBERG

Seidenberg, Strunk & Goldenberg

246 East Water Street.

Syracuse, New York 13202

Tel: (315) 422-0144

Counsel of Record

November 7, 1989

(Appendix UNDER SEPARATE COVER)

22

FOOTNOTES:

’ The remaining charges which were heard at the

court-martial are set forth in the Staff Judge Advocate

Review of court-martial, dated 06 May 1982, set forth in

the Appendix at pages 75 to 103.

2 The Advice of the Staff Judge Advocate, dated 04

February 1982, recommended that specifications 2, 3

and 4 of Charge IV be dismissed.

Pursuant to this recommendation, these charges

were dismissed prior to the trial by court-martial.

The Staff Judge Advoate Review of 06 May 1982, set

forth in the Appendix at pages 75 to 103,

recommended that the findings of guilty of

Specifications 1 and 2 of Charge | not be approved,

and that the findings of guilty on Charge Il and its

specification be reduced to finding of guilty of the

lesser included offense of attempted possession of

amphetamines. =

On 10 June 1982 the Convening Authority issued

General Court-Martial Order No. 9, set forth in the

Appendix at pages 104 to 108, in which it disapproved

the Findings of Guilty of Specifications 1 and 2 of

Charge | and, with respect to Charge Il, approved

guilty findings only of an attempted violation. Except

for a reduction in the period of confinement to six

years, the remaining findings and sentence were

approved. .

On 23 March 1983, by Action of the Judge Advocate

General, set forth in the Appendix at page 116, all

confinement in excess of three years was remitted. Lt.

Newak served fourteen months at Leavenworth Prison

and was then paroled.