# Petition for Writ of Certiorari — Mansfield v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1052

## Text

No. ® ® .,

Supreme Court of the United

OCTOBER TERM, 1993

IN THE °

CLYDE E.L. MANSFIELD, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

December 1993

JAY LINDSEY COHEN

Lt Colonel, United States Air Force

Chief, Appellate Defense Division
Counsel of Record

FRANK J. SPINNER

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel
Counsel for the Petitioner

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

States

we

QUESTION PRESENTED

Following the successful challenge of a conviction on the
basis of ineffective assistance of counsel, does the due process
clause of the Fifth Amendment bar the subsequent use of
statements prepared by an accused at the request of his inef-
fective trial defense counsel, which statements were intro-
duced during the evidentiary hearing for the limited purpose of
establishing the denial of the Sixth Amendment right to effec-
tive counsel

TABLE OF CONTENTS

Page
OPINIONS BELOW ; hz seioabee l
JURISDICTION aoae whaliereuceeciedn 2
CONSTITUTIONAL PROVISIONS INVOLVED ........... 2
PEPE EMGEETE COE BEM CIROUE i crtsciselaciatccsseantteaunn 2
REASONS FOR GRANTING THE WRIT .. 10
CONCLUSION $ 2
APPENDIX A la
APPENDIX B 10a
APPENDIX C 25a
APPENDIX D 95a

TABLE OF AUTHORITIES

Supreme Court Cases: Page

Adams v. United States ex rel. McCann, 317 US
a oe eulbpentceveonedwenrins
Chapman v. California, 386 U.S. 18 (1967) ...
Harris v. New York, 401 U.S. 222 (1971) ...............
James v. Illinois, 110 §. Ct. 648 (1990).....000000........
Kastigar v. United States, 406 U.S. 441, 92 S. Ct

Re Re es) a Pe

Lockhart v. Fretwell, 113 S. Ct. 838 (1993) ..
Oregon v. Hass, 420 U.S. 714 (1975) .

Simmons v. United States, 390 U.S. 377 (1968) . me 16,
Strickland v. Washington, 466 U.S. 688 (1984) ..... 8, 10,
United States v. Chronic, 466 U.S. 648 (1984) ...... 10, 11,

Federal Cases:
Polythane Systems v. Marine Ventures International,
Lid., 993 F.2d 1201 (Sth Cir. 1993) 00000...
lasby v. United States, 504 F.2d 332 (8th Cir.)
(1974)... "
United States ex rel Williams Vv Twome y, 510 F.2d
634 (7th Cir. 1975), cert. denied sub nom. Sielaff
v. Williams, 423 U.S. 876 (1975) 2000000...
United States v. Suarez, 820 F.2d 1158 (11th Cir

1987) ....... Sceaaudeiaaediceracecaveswcdeousoukhs . 16,

States Cases
In re Gillham, 704 P.2d 1019 (Mont. 1985)

Waitkus v. Mauet, 757 P.2d 615 (Ariz. Ct. App
1988)

Military Cases
United States v. DuBay, 17, US.C.M.A. 147, 37
ea. csvacnnsanneves
United States v. Gnibus, 21 M.J. 1 (C.M.A. 1985) ...
United States v. Johnson, 21 MJ. 211 (C.M.A
1986)...

10
17
19
10
18
1]
19
19

1]
12

19

17

14

18

TABLE OF AUTHORITIES—Continued

Military Cases—Continued Page
United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R.
1987) awe ; he l
United States v Mansfield. 33 MJ. 972 (A F.C.M.R
1991) PI ee eR ORE te Beh SUE Zz. ea
18, 21
United States v. Mansfield, No. 67,973, slip op.
(C.M.A. 30 September 1993)........ care Pan FF
19, 21
United States v. Myles, 29 MJ. 589 (A.F.C.M.R
1989) 2 Macnee! 20
United States v. Stark, 24 MJ. 381 (C.M.A. 1989)... 20
United States v. Ward. | MJ. 176 (1975) 17
Constitutional Provisions
U.S. Const. amend. V 2. 10, 22
U.S. Const. amend. VI 2, 10, 22
Federal Statutory Provisions
10 U.S.C.A. § 867(a) (Supp. 1992) ; 2
12 USCA. § 1259(3) (Supp. 1992) 2
Uniform Code of Military Justice
Art. 32, 10 US.C. § 832 5
Art. 36, lOUSC. § 836 7
Art. 38, (O USC. § 838 10
Federal Rules of Evidence
Fed. R. Evid. 103(a) 17
Fed R. Evid 105 : 9

Fed R. Evid. 705 20

TABLE OF AUTHORITIES Continued

Military Rules of Evidence Page
Mil.R Evid. 103 17
Mil.R.Evid. 105 9
Mil.R.Evid. 502(d)(3) 7

Mil.R.Evid 802(d)(2) 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No.

CLYDE E.L. MANSFIELD, PETITIONER
Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Clyde E.L. Mansfield, respectfully prays
that a writ of certiorari issue to review the order and judgment
of the United States Court of Military Appeals entered in his
case on September 30, 1993.

OPINIONS BELOW

The order and judgment of the United States Court of
Military Appeals, No. 67,973, slip op. (C.M.A. 30 September
1993) is located at Appendix A. The opinion of the United
States Air Force Court of Military Review setting aside
petitioner’s conviction following the first trial (Mansfield 1) is
reported at 24 MJ. 611 (AF.C.MR. 1987) (Appendix B).

(1)

2

The opinion of the United States Air Force Court of Military
Review which affirmed petitioner’s conviction following re-
trial (A/ansfield 11) is reported at 33 MJ. 972 (A F.C.MR.
1991) (Appendix C).

JURISDICTION

The final order of the United States Court of Military
Appeals was entered on September 30, 1993. The jurisdiction
of this Court is invoked under 28 USCA § 1259(3) (Supp.
1992) and 10 USCA § 867(a) (Supp. 1992)

CONSTITUTIONAL PROVISIONS iNVOLVED

The fifth Amendment of the Constitution of the United
States provides in relevant part:
No person 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. . .

The Sixth Amendment of the Constitution of the United
States provides in relevant part:
In all criminal prosecutions, the accused shall enjoy
the right to have the Assistance of Counsel for
his defense.

STATEMENT OF THE CASE

| The first trial

Yang Chae-Song was found dead in an alley in Song-Tan,
Korea on February 4, 1984 The cause of death was a single
stab wound to his back. The petitioner, a Staff Sergeant (E-5)
in the United States Air Force, was soon identified as a suspect
and was apprehended at Edwards Air Force Base, California,
on April 4, 1984. The victim was the ex-husband of Un-Cha

3

Haney, the petitioner’s lover. The facts leading up to and
culminating in the death of Yang Chae-Song are detailed in the
opinion of the Air Force Court of Military Review, and need
not be repeated here. United States v. Mansfield, 33 M.J. 972-
1010 (A.F.C.M.R. 1991) (Appendix C).'

The appellant was ultimately tried and convicted of pre-
meditated murder and received a sentence which included life
imprisonment, a dishonorable discharge, reduction to the grade
of E-1, and total forfeiture of pay and allowances. On appeal
the petitioner argued, inter alia, that he had been denied the
effective assistance of counsel. The basis for this assertion was
the failure of trial counsel to investigate, prepare and present
evidence which would properly support the defense of insan-
ity, or diminished capacity so as to reduce the degree of guilt.
In order to resolve the issue the Air Force Court of Military
Review, at the joint and several request of appellate govern-
ment and appellate defense counsel, ordered an evidentiary
hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967).

The allegation of ineffective assistance of counsel arose
from the decision of petitioner’s defense counsel team to
abandon an insanity defense in mid-trial. The sanity issue had
it’s genesis in the petitioner’s pretrial confinement hearing.
Captain Prater, the local Air Force Area Defense Counsel,
established an attorney-client relationship and represented the
petitioner at the hearing. Captain Prater was one of four
military lawyers who were responsible for the petitioner’s
defense. It was during this hearing that Captain Prater first
became aware of the petitioner’s bizarre behavior and obses-
sion with Un-Cha Haney. Unfortunately, Captain Prater did
not communicate his concerns regarding the petitioner’s san-
ity to his co-counsel.

' The facts set forth infra are contained within the opinions of the Air
Force Court of Military Review in Mansfield] ( Appendix B) and Mansfield
// (Appendix C).

Following the pretrial confinement hearing, petitioner was

returned to Korea. Upon his arrival, the petitsoner was inter-
viewed by another defense attorney, Major (then Captain)
Gregory P. Holder. In order to begin preparing a defense,
Major Holder obtained a verbal rendition of the circumstances
surrounding the offense from the petitioner. Initially, the peti-
tioner told Major Holder that he could not recall the events
surrounding the killing. Around this time Lieutenant Colonel
Nowak became a member of the defense team. Lieutentant
Colonel Nowak was the Chief Circuit Defense Counsel for the
Seventh Circuit, United States Air Force Judiciary.*

Since Major Holder and Lieuteant Colonel Nowak did not
believe they had obtained the truth, they advised petitioner not
to cooperate with the sanity board initiaily scheduled by the
government. As defense counsel continued questioning peti
tioner they became aware, as had Captain Prater, of petitioner’s
preoccupations and obsessions. Lieuteant Colonel Nowak and
Major Holder then made a defense request for a sanitary
board The defense request was granted and on June 21, 22
and 25, 1984, the petitioner appeared before Lieutenant Colonel
(Doctor) Robert L_ Vosburg, who served as the sole member
of the sanitary board. In Doctor Vosburg’s opinion, the peti-
tioner had a diminished capacity to appreciate the criminality
of the offense and lacked capacity to conform his conduct to
the law as the result of a mental disorder. The disorder Doctor
Vosburg diagnosed was post traumatic neurosis, chronic

Subsequently, at the request of his counsel, petitioner pre-
pared a 58 page handwritten statement. This statement was
later reterred to as his “Life Story” during the evidentiary
hearing and the retrial in Mansfield 1]. Major Holder reduced

Atthe time of these events, the Air Force Judiciary consisted of seven
circuits. The Seventh Circuit consisted of all Air Force installations in

the Pacific region

the handwritten statement to a typed document. This typed
document was admitted as Hearing Exhibit 7 at the post-trial
evidentiary hearing, and ultimately became Prosecution Ex-
hibit 65 in Mansfield I. Both of these documents were .reated
as attorney work product and kept with the case files.

The petitioner’s rendition contained a number of incriminat-
ing statements. These included his attempt to hire a “hit man”
to kill Yang, his purchase of a knife shortly before the homi-
cide and the manner of its use at the scene. The petitioner later
informed his counsel that the “Life Story” was false in a
number of respects. He informed Major Holder that he had
“dreamt” the information about the hit man and the purchas-
ing of a knife. The petitioner eventually provided defense
counsel with another version of the events. This version was
one defense counsel believed was closest to the truth and
excluded the inculpatory information concerning a hit man and
the knife. This version was typed by Captain Holder and
introduced at the evidentiary hearing 23 Hearing Exhibit 8

Major Holder had reservations about the strength of Doctor
Vosburg’s potential testimony because he felt Doctor Vosburg
lacked experience. However, Major Holder did not discuss his
concern with Doctor Vosburg because yet another defense
attorney, Major Poole, was responsible for preparing the in-
sanity defense. The defense attorneys were aware that a por-
tion of the pretrial investigation would be conducted in Cali-
fornia at Edwards Air Force Base.’ In order to bolster the
testimony of Doctor Vosburg, Captain Prater was contacted
and requested to locate civilian psychiatrists in the local Cali-
fornia area. Captain Prater arranged appointments with Doc-
ters Michael B. Coburn, John Beck, and William T Vicary, all

' A pretrial investigation conducted pursuant to Article 32, Uniform
Code of Military Justice, 10 U.S.C. § 832, is comparable in purpose to a
Civilian grand jury

6

of whom subsequently evaluated the petitioner. Captain Prater
never discussed the results of these evaluations with the Doc-
tors involved. The three doctors were provided with petitioner’s
final statement, as set forth in Hearing Exhibit 8

On 26 July 1984, the portion of the pretrial investigation
scheduled to be held at Edwards Air Force Base was con-
ducted. During the course of the hearing, Majors Poole and
Holder learned of 37 lay witnesses who described the peti-
tioner as “‘strange”’ or “crazy.” Although these defense attor-
neys obtained the names and addresses of the witnesses, they
never attempted to interview them, nor did they request Cap-
tain Prater interview them

Subsequent to the hearing at Edwards Air Force Base,
Captain Prater received the evaluations of the civilian doctors
Captain Prater learned that Doctor Vicary could support a
defense based on partial mental responsibility, but he never
communicated this to co-counsel. Captain Prater also received
an evaluation from Doctor Beck which stated the petitioner
suffered from a mental defect which resulted in his lacking
capacity to conform his conduct to the law. Similarly, Doctor
Coburn contacted Captain Prater and advised him that he had
changed his original opinion and could now support an insan-
ity defense

Upon a prosecution motion, a second sanity board was
ordered by the military judge. The board, consisting of three
psychiatrists, rendered an opinion that the petitioner did not
have a mental disease or defect. The defense made no attempt
to interview any member of this second board until the board
president arrived in Korea as a government witness at trial

Likewise, Doctors Coburn and Vosburg were not inter-
viewed until they arrived in Korea. In fact, Doctor Coburn did
not arrive until approximately the same day the prosecution
rested its case-in-chief. It was the interview with Doctor
Coburn which caused the defense to abandon the insanity

defense. Although the defense had not provided the experts
with either of the petitioner’s statements, Doctor Coburn’s
interview notes mentioned the petitioner attempting to hire a
“hit man.” Doctor Coburn was surprised to find this entry and
informed counsel that he had not relied on the “hit man”
information in reaching his opinion. Fearing this information
would be devastating on cross-examination, the defense coun-
sel abandoned the mental responsibility defense. Not all of the
defense team was satisfied with this approach. Lieutenant
Colonel Nowak felt that it was overwhelmingly dangerous to
abandon the insanity defense in mid-stream, but did not inter-
cede in his supervisory capacity.

2. The evidentiary hearing.

The petitioner was represented by different counsel at the
evidentiary hearing ordered by the Air Force Court of Military
Review. The issue of the attorney-client privilege was ad-
dressed and both the prosecution and defense recognized that,
while waiver of the privilege would apply, the evidence ad-
duced could only be used to resolve the ineffective assistance
of counsel issue.* The military judge ruled that communica-
tions between the petitioner and his prior counsel were in-
cluded in the limited use waiver. The defense position was that
waiver was valid solely for the purpose of resolving the
ineffective assistance of counsel claim and could not be used
for any other purpose

The counsel who represented Petitioner at the hearing pro-
vided, as a result of the military judge’s ruling, both the long

‘ The attorney-client privilege in the military is not a common law
rule. The President, exercising his power to prescribe procedures and
methods of proof in courts-martial, as granted by Article 36, Uniform
Code of Military Justice, 10 U.S.C. § 836, adopted Military Rule of
Evidence 502. Mil. R. Evid. 502(d)(3) states that there is no privilege

*[a]s to a communication relevant to an issue of breach of duty by the
lawyer to the client or by the client to the lawyer.”

| eae

version (Hearing Exhibit 7) and the redacted version (Hearing
Exhibit 8) of the “Life Story.” Defense counsel made it clear,
however, that he was objecting to any use of the documents
outside of the evidentiary hearing. Doctors Coburn and Vosburg
testified during the course of the evidentiary hearing and both
were required to review the long version of the “Life Story”
as part of their testimony

Following completion of the evidentiary hearing, the mili-
tary judge entered findings of fact’ and the record was for-
warded to the Air Force Court of Military Review. That court,
relying on this Court’s decision in Strickland v. Washington,
406 U.S. 668 (1984), held that petitioner had been denied his
constitutional right to the effective assistance of counsel as the
result of counsel’s failure to investigate, prepare, and present
the mental condition evidence. Accordingly, the Air Force
Court of Military Review set aside the finding of guilty and the

sentence

3. The second trial

The petitioner was subsequently retried on the charge of
premeditated murder (Mansfield /]). Prior to the retrial, the
defense made a motion in /imine seeking to preclude the use
of either version of the appellant’s “Life Story.” Defense
counsel argued that the prosecution could not use any evi-
dence they had obtained or became aware of as the result of
the evidentiary hearing. The prosecution opposed the motion,
contending that the attorney-client privilege no longer existed
Although different counsel represented the government, it was
clear they were well aware of the existence of the statements ‘

The military judge initially ruled that the government could
reinterview the defense experts and review reports and state-

* The findings of fact are attached as Appendix D
° This is not surprising since, at a minimum, portions of the
Statements appeared in the published decision in Afansfield /

9

ments of the petitioner which the expert relied upon in arriving
at an opinion, but that privileged matters released at the
evidentiary hearing still had limited use protection.’ The mili-
tary judge later retreated from this ruling and held that the
mere review of hearing exhibit 7 by defense expert witnesses
waived any protection accorded the exhibit

The defense opposed this later ruling on several grounds
First, they pointed out that Doctors Coburn and Vosburg were
required to review the long version of the “Life Story” during
the evidentiary hearing although neither relied upon it in
reaching their opinion. Further, in light of the military judge’s
ruling, the defense felt it necessary to have the other two
experts, Doctors Beck and Strefling, review the long version
in order to prepare them for possible cross-examination. The
defense made it clear that none of the witnesses relied on this
long version as a basis for their opinion. The witnesses had
already formed their opinions before its existence was re-
vealed to them and it did not change any of their original
opinions

The long version of the Life Story became Prosecution
Exhibit 65 at the retrial. The prosecution went through the
statement line by line, page by page, during their cross-exami-
nation of Doctor Beck. They also used it during cross-exami-
nation of Doctors Strefling and Coburn. Over defense objec-
tion, Prosecution Exhibit 65 was admitted as substantive evi-
dence. The prosecution relied upon it during closing argu-
ment, and it was considered by the court members during
deliberations

On appeal from his second conviction, both the Air Force
Court of Military Review and the United States Court of
Military Appeals rejected the petitioner’s argument that he had

’ The military judge relied on Military Rule of Evidence 105. That rule
is identical to, and based on, Federal Rule of Evidence 105

10

been denied due process by the use of the evidence which had
been released for the limited purpose of resolving the ineffec-
tive assistance of counsel claim. The courts below held that
any attorney-client privilege which existed had been waived

REASONS FOR GRANTING THE WRIT

No federal court has established a definite rule with regards
to the subsequent use of evidence derived during an evidentiary
hearing ordered to address a claim of ineffective assistance of
counsel. For the reasons set forth infra, the petitioner asserts
that the Due Process Clause of the Fifth Amendment prchibits
the use of such evidence at a retrial following 4 *.cesstul
challenge

In Strickland v. Washington,466 U.S. 668 (1984), this Court
observed that ‘“‘the right to counsel plays a crucial role in the
adversarial system embodied in the Sixth Amendment, since
access to counsel’s skill and knowledge is necessary to accord
defendant’s the ‘ample opportunity to meet the case of the
prosecution’ to which they are entitled.’ /d. at 685, citing
Adams v. United States ex rel. McCann, 317 U.S. 269. A
violation of the right to counsel, as defined by the Sixth
Amendment, denies an accused the right to a fair trial as
guaranteed by the Due Process Clause of the Fifth Amend-
ment. Strickland, supra, 466 U.S. at 684, 685. See also,
U/nited States v. Chronic, 466 U.S. 648, 658 (1984) (“the
right to the effective assistance of counsel is recognized not
for its own sake, but because of the effect it has on the ability
of the accused to receive a fair trial’). The right to counsel
applies fully to service members facing trial by courts-martial
See, e.g., Article 38, Uniform Code of Military Justice, 10
U S.C. § 838; United States v. Gnibus, 21 MJ. 1 (C.M.A
1985), United States v. Johnson, 21 M.J. 211 (C.M.A. 1986)

1]

his Court has established a two pronged test to be applied
when a court is confronted with allegations of ineffective
assistance of counsel

First, the defendant must show that counsel’s per-
formance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense
his requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable

Strickland, supra, 466 U.S. at 687. With limited exceptions,
such as the complete denial of counsel, an accused can estab-
lish a claim of ineffective assistance “only by pointing to
specific errors made by trial counsel.” United States v. Chronic.
supra, 466 U.S. at 666. An analysis of errors cannot focus
solely on outcome determination “without attention to whether
the result of the proceeding was fundamentally unfair or
unreliable.’ Lockhart v. Fretwell, 113 S.Ct. 838 (1993)
What this Court has not yet addressed, however, is the use
of the “specific error” evidence in a subsequent retrial should
the accused prevail on the claim that he was denied a fair trial
As the record of the evidentiary hearing reveals, the military
judge permitted inquiry into all aspects of the attorney/client
relationship during the evidentiary hearing. As a result, con-
siderably more information came to the attention of the pros-
ecution than would have otherwise. The prosecution, over
strenuous defense objection, relied heavily on this evidence to
not only rebut the mental capacity issue, but to also establish
premeditation. Since this evidence consisted of the very thought
processes of the petitioner, created in private at the behest of
his Own attorney in preparation for litigation, its persuasive

12
value was immense. The result was comparable to the “sacri-
fice of unarmed prisoners to gladiators.”” United States v.
(Chronic, supra, 466 U.S. at 657, citing United States ex rel.
Williams v. lwomey, 510 F.2d 634, 640 (7th Cir. 1975), cert.
denied sub nom. Sielaff v. Williams, 423 U.S. 876 (1975)

The government’s position, and the one adopted by the Air
Force Court of Military Review, was that the evidence could
be properly used against the appellant because he had waived
any attorney-client privilege. The petitioner argued that the
government should be barred from using the evidence derived
from an ev'dentiary hearing ordered by the court to address an
allegation of ineffective assistance of counsel. The Air Force
Court of Military Review rejected petitioner’s argument, stat-
ing

he appellant, however, seeks dismissal of the
charges as his remedy. Citing Kastigar v. United
States, 406 US. 441, 92 S.Ct. 1653, 32 L.Ed 2d
212 (1972), he argues that he was “compelled” to
waive the attorney-client privilege in order to estab-
lish grounds of ineffective assistance of counsel
rhus, he ts entitled to a “Aastigar-like” remedy
wherein the prosecution has the affirmative duty to
prove that the evidence it wishes to use at the second
trial was derived from a legitimate source wholly
independent of the “compelled” testimony relating
to his claim of inadequate representation. He con-
tends, without the protection, “ [a] retrial be-
comes nothing more than a forum whereby the gov-
ernment perfects its case at the expense of the
appellant’s Sixth Amendment right to effective as-
sistance of counsel.” This assertion misses the mark
While the appellant’s self-interest may “compel”
him to claim that his lawyer was inept, this “compul-

13

sion” does not allow him to re-claim his attorney-
client privilege. An attack on an attorney’s compe-
tence waives the attorney-client privilege as to mat-
ters reasonably related to the claim of inadequate
representation

United States v. Mansfield, supra, 33 M.J. at 97
Similarly, The United States Court of Military Appeals

stated

Before us, appellant again focuses on the turbu-
lence generated by the initial trial defense team. He
argues that their inadequacies compelled him to
attack them in order to demonstrate the unfairness
of his trial. To that end, he argues, it was necessary
to bring into the light of day his highly incriminating
statement, this statement which otherwise would
have remained enshrouded by the attorney-client
privilege. Thus, appellant contends, he was unfairly
penalized in his subsequent rehearing by the
prosecution’s cross-examination of his witnesses and
by the receipt in evidence of the statement.

To put this in context, in order to present his
mental responsibility defenses at the second trial,
appellant found it necessary to call expert witnesses,
armed with his incriminating statement, to testify
about his mental condition at the time of the killing
In providing his witnesses with the statement in this
manner, appellant waived his privilege with respect
to it. But for this fact, we agree there would have
made a dynamite issue. As the case stands, however,
its resolution becomes a paradigm of simplicity

U/nited States v. Mansfield, No. 67-973, slip op. at 5-6 (C.M.A
30 September 1993) (emphasis in original)

14

Both the Air Force Court of Military Review and the United
States Court of Military Appeals erred by summarily dismiss
ing the appellant's assertions on the basis of waiver. As the
Montana Supreme Court correctly noted, “waiver’’ may not
even be the correct term to use tn this type of situation. That

Court observed

While a petition for post-conviction relief alleging
inadequate assistance of counsel has been held to be
a waiver of the attorney-client relationship relating
to privilege waiver may be a misnomer in the true
sense of that legal term. Waiver is the voluntary
relinquishment of a known right. More important
than the privilege granted to the attorney-client re-
lationship are the effective administration of justice
and integrity of the fact-finding system in criminal
matters. Unlike the usual waiver situation, a petition
by one convicted of a crime alleging that his convic-
tion is the result of inadequate assistance of counsel
attacks the system of judicial administration and the
fairness of our trial procedures Therefore the
comprehension of waiver by a petitioner or his

knowledge and consent to waiver are irrelevant

In re Gillham 704 P.2d 1019, 1020 (Mont. 1985) (emphasis
added).°

his Court has considered an analogous situation involving
the question of whether the testimony of an accused during a

"The government argued before the United States Court of Military
Appeals that /n re Gillham actually supported their position that an
incilective assistance of counsel claim waives any right to a claim of
privilege. This is an overly broad reading of the case. /n re Gillham did
not address the use of evidence deduced during an evidentiary hearing in
a subsequent retrial. The issue in the case was whether trial defense
counsel was required to comply with an order to submit an affidavit to the
appellate court

suppression motion can be introduced against him during the
trial. This Court observed

It seems obvious that a defendant who knows that
his testimony may be admissible against him at trial
wil! sometimes be deterred from presenting the tes-
timonial proof of standing necessary to assert a
Fourth Amendment claim. The likelihood of inhibi-
tion is greatest when the testimony is known to be
admissible regardless of the outcome of the motion
tO suppress

lhe rule adopted by the courts below does not
merely impose upon a defendant a condition which
may deter him from asserting a Fourth Amendment
objection—it imposes a condition of a kind to which
this Court has always been peculiarly sensitive. For
a defendant who wishes to establish standing must
do so at the risk that the words which he utters may
later be used to incriminate him. Those courts which
have allowed the admission of testimony given to
establish standing have reasoned that there is no
violation of the Fifth Amendment’s Self-Incrimina-
tion Clause because the testimony was voluntary. As
an abstract matter, this may well be true. A defen-
dant is ‘“compelled”’ to testify in support of a motion
to suppress only in the sense that if he refrains from
testifying he will have to forego a benefit, and testi-
mony is not always involuntary as a matter of law
simply because it is given to obtain a benefit. How-
ever, the assumption which underlies this reasoning
is that the defendant has a choice: he may refuse to
testify and give up the benefit. When this assumption
iy applied to a situation in which the “benefit” to be
gained is that afforded by anotiver provision of the
Bill of Rights, an undeniable tension is created.

16

lhus, in this case Garrett was obliged either to give
up what he believed, with advice of counsel, to be a
valid Fourth Amendment claim or, in legal effect, to
waive his Fifth Amendment privilege against self-
incrimination. /n these circumstances, we find it
intolerable that one constitutional right should have
to be surrendered in order to assert another.

Simmons v. United States, 390 U.S. 377, 392-393 (emphasis
added)

A situation similar to the petitioner’s was considered in
l/uted States v. Suarez, 820 F.2d 1158 (11th Cir. 1987). In
that case, the accused pled guilty to various charges arising
trom the possession and transfer of weapons. Seven months
later, Suarez requested an evidentiary hearing on the issue of
whether his attorney had adequately disclosed the nature and
consequences of his guilty plea. “At the hearing, Suarez
expressly waived his attorney-client privilege to permit’”’ his
prior attorney, Feldman, to testify. 820 F 2d at 1159 (emphasis
added). Following the hearing, the trial court set aside the
guilty plea on the grounds that Suarez may not have been
completely aware of the consequences of his plea

During the subsequent jury trial, the prosecution called the
attorney as a witness during its case in chief. The trial judge,
over defense objection, “ruled that the attorney-client privi-
lege had been waived as to the matters to which Feldman had
testified at the prior evidentiary hearing, and the court allowed
Feldman to testify” 820 F.2d at 1159. On appeal, Suarez
argued that the rationale expressed in Simmons v. United
States, supra, applied. In affirming the conviction, the Court
of Appeals observed

Appellant’s contention is an interesting and diffi-
cult one, but we need not address it in this case
After a careful review of the record, we have con-

17

luded that Suarez did not present to the district
court the Simmons rationale as a basis for his objec-
tion to Feldman’s testimony. He argued Only that use
of the testimony would violate his attorney-client
privilege. Fed.R.Evid. 103(a) provides that error
may not be predicated upon a ruling which permits
evidence unless the specific ground for the objection
is inade clear. The nature of the error must be
“called to the attention of the judge, so as to alert
him to the proper course of action and enable Oppos-

ing counsel to take proper corrective measures a
Suarez, 820 F.2d at 116]

lhe facts in Suarez are distinguishable from those present in
the case sub judice. The petitioner did not expressly waive his
attorney-client relationship. Instead, the parties made it cleat
that the release of privileged information during the evidentiary
hearing was for the limited purpose of addressing the ineffec-
live assistance claim. Further, the defense made the basis of
their objection clear at the subsequent trial

‘Military Rule of Evidence 103 is nearly identical to, and based on
Federal Rule of Evidence 103. The military rule makes it clear however,
that errors of a constitutional dimension are handled differently. The
relevant section states

"he standard provided in this subdivision does. not apply to
errors involving requirements imposed by the Constitution of
the United States as applied to members of the armed forces
except insofar as the error arises under these rules and this
subdivision provides a standard that is more advantageous to
the accused than the constitutional standard

When a constitutional error is involved, the United States Court of
Military Appeals has long held that the correct standard to apply is the
one set forth by this Honorable Court in Chapman v. California, 386 U.S
18 (1967). See, e.g., United States v. Ward 1MJ. 176 (1975)

18

At Mansfield’s second trial, his counsel contended
the government could not use any evidence that they
had gained access to, or become aware of, through
the limited waiver of attorney-client privilege during
the evidentiary hearing. He argued that Mansfield
only waived the privilege to show the ineffective
assistance of his counsel at the first trial and use of
this compelled evidence in the second trial would
violate due process

Mansfield, supra, 33 M3. at 1000 (Leonard, J., dissenting)
(emphasis added)

lhe Arizona Court of Appeals has squarely addressed the
petitioner's concerns in a similar case. In Waitkus v. Mauet,
757 P 2d 615 (Ariz. Ct. App. 1988), the accused raised a post-
conviction claim of ineffective assistance of counsel. In re-
sponse, the state sought discovery of his defense counsel’s
files. The trial court granted the state’s request, but ruled that
the prosecutor was prohibited from disclosing this information
to other attorneys and that the county prosecutor’s office had
to withdraw from the case. On appeal the Arizona Court of
Appeals vacated the order and noted

| These measures did] not avoid the obvious chill-
ing effect the ruling has on a defendant’s right to
raise a claim of ineffective assistance of counsel. It
appears to a defendant that the state will have access
to information it could use in other proceedings in
addition to information it could use in the event the
new trial motion ts granted

757 P.2d at 616

Before the Air Force Court of Military Review and the
United States Court of Military Appeals, the petitioner, rely-
ing on Waitkus, supra, urged the adoption of a standard similar
to that employed in AKastigar v. United States, 406 U.S. 441
(1972). While petitioner asserts that a Kastigar approach best

19

serves the interest of avoiding the “chilling effect” on accused
who have meritorious claims of ineffective assistance of coun-
sel, the result in petitioner’s case would be the same should a
Simmons-type standard be employed.

To demonstrate this position it is necessary to break the
evidence down into the component parts. According to the
Court of Military Appeals, ““[w]ith respect to the prosecutor’s
direct introduction of the incriminating statement [Prosecu-
tion Exhibit 65], it was an admission by a party-opponent,
Mil. R. Evid. 802(d)(2), and was admissible.” Mansfield, supra,
slip op. at 6. This position is overly simplistic and ignores the
fact that the statement was introduced to establish that the
petitioner was denied the protection afforded by the Bill of
Rights, the right to effective assistance of counsel. An accused’s
testimony On a motion to suppress may also be an admission
by a party-opponent, but the introduction of such testimony
during the subsequent trial would be “intolerable.” Simmons,
supra, 390 US. at 394.

Of course, even under a Simmons-type analysis an accused
may be impeached with otherwise inadmissible statements
should he take the stand on his own behalf. See, e.g., Harris
v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S
714 (1975).'° However, the suppressed statements cannot be
used to impeach the testimony of other witnesses. James v.
/llinois, 110 S.Ct. 648 (1990). As this Honorable Court noted
in James, “an expanded impeachment exception likely would
chill some defendants from calling witnesses who would oth-
erwise Offer probative evidence.”'' 110 S.Ct. at 654.

” An accused can also be tried for perjury should he provide false
testimony at the evidentiary hearing. See, e.g., Tasby v. United States,
504 F.2d 332 (8th Cir. 1974)

" Petitioner recognizes that the concern of the Court in James was that
“the proposed expansion of the current impeachment exception would
significantly weaken the exclusionary rule’s deterrent effect on police
misconduct.’’ This Court has also observed, however, that ‘‘an expanded

20

Phe result should not turn on whether the witness is provid-
ing expert or lay testimony. The use of experts Is not a carte
blanche to smuggle in inadmissible evidence

Federal Rule of Evidence 705 [sic] provides that an
expert may give an opinion on a matter without prior
disclosure of the facts or data underlying his opin-
ion, unless the court requires otherwise. “The expert
may in any event be required to disclose the under-
lying facts or data on cross-examination.”’
Fed R.Evid. 705. While revealing the basis for an
expert’s opinion is allowed, such disclosure does not
facilitate the admission of otherwise inadmissible
evidence

Polythane Systems v. Marina Ventures International, Litd.,
993 F.2d 1201, 1207 (Sth Cir. 1993).'* Both the Air Force
Court of Military Review and the United States Court of
Military Appeals have relied on this principle to exclude tes-
timony in previous cases. See, United States v. Myles, 29 M.J
589, S91 (AFCMR. 1989) (“This rule does not permit
either party to ‘smuggle’ hearsay evidence into the case’’);
(/nited States v. Stark, 24 M.J. 381 (C.M.A. 1987).

The government argued at trial, as well as on appeal, that
the cross-examination of the experts through the use of the
long version of the petitioner’s “Life Story” was proper
because the experts relied upon it in forming their opinions
The Air Force Court of Military Review summarily disposed
of petitioner’s arguments to the contrary by simply stating that

impeachment exception likely would chill some defendants from calling
witnesses who would otherwise offer probative evidence.”” 110 S.Ct. at
654. A similar chilling cffect would occur should cross-cxamination be
permitted using testimony otherwise inadmissible under a Simmons analy-
SIS

'* Military Rules of Evidence 703 and 705 are identical to, and based
on, the Federal Rules

21

“appellate counsel are arguing semantics. It is clear that
defense psychiatrists used the statement in reaching a diagno-
sis.’’ Mansfield, 33 M.J. at 985. The United States Court of
Military Appeals relied on this brief language to hold that “the
majority of the Court of Military Review squarely found” the
statement was relied upon by the experts. Mansfield, slip op
at note 4. The Court of Military Appeals, therefore, found it
unnecessary to decide whether the experts “‘used”’ the state-
ment

However, as the dissenting judge on the Air Force Court of
Military Review correctly noted,

The mere release of the narrative statements to
trial counsel did not necessarily give him the author-
ity to use the statements outside his interviews with
the defense psychiatrists. His ability to use the state-
ments in cross-examination depended upon the cir-
cumstances of each psychiatrist’s access to the state-
ment and the extent, if any, the expert relied upon
the statement to form his opinion.

Doctors Beck, Coburn, and Strefling had no pre-
vious involvement with any mental examination or-
dered under [Rule for Courts-Martial] 706(b). Nei-
ther Beck or Strefling were potential expert wit-
nesses at the first trial and they did not testify at the
evidentiary hearing. They reviewed both versions of
the narrative statement to prepare them for expected
cross-examination. Appellant related portions of the
first narrative statement to Doctor Coburn during
interviews in preparation for the first trial. Coburn
also reviewed both versions during his testimony at
the evidentiary hearing. None of the three testified
that he relied upon either narrative statement as a
basis for his opinion

Mansfield, 33 M.J. at 1005 (Leonard, J., dissenting). As Judge
Leonard observed, but for the fact that an evidentiary hearing

was required, none of the witnesses would have been exposed
to the statement. But for the fact that the trial judge at the
retrial ruled the prosecution could use the statement on cross-
examination, none of the experts (with the exception of Doc-
tor Coburn who saw the statement at the evidentiary hearing)
would have even seen the statement. The addressing of the
statements on direct was simply a recognition that disclosure
was a fait accompli given the military judge’s ruling

CONCLUSION

Ensuring that convictions are obtained in a manner which is
fundamentally fair and reliable is the bedrock of the Due
Process Clause of the Fifth Amendment. As such, the impor-
tant issue presented in this case affects not only the interests
of the petitioner, but that of all citizens. The effective assis-
tance of counsel, as guaranteed by the Sixth Amendment, ts an
indispensable and inseparable component in satisfying these
constitutional concerns. We necessarily rely upon the accused
themselves to bring these matters to the attention of the
courts. When a court orders an evidentiary hearing to address
these issues and thereafter reverses the conviction, the court
has made a finding that society cannot feel confident that the
conviction was fundamentally fair and reliable. To permit the
government to use attorney-client communications, disclosed
for the purpose of exposing a constitutionally infirm convic-
tion, will only chill the assertion of similar claims in the future
For all the reasons stated, the petition for a writ of certiorari
should be granted

Respectfully submitted,

JAY LINDSEY COHEN

Lt Colonel, United States Air Force

Chief, Appellate Defense Division
C'ounsel of Record

ll

ho

wy

FRANK J. SPINNER

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel
Counsel for the Petitioner

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

APPENDICES

APPENDIX A pee

U.S. COURT OF MILITARY APPEALS

No. 67.973
CMR No. 24758

UNITED STATES, APPELLE!

CLYDE E.L. MANSFIELD, STAFF SERGEANT
U.S. AIR FORCE, APPELLANT’

Argued June 3, 1993
Decided Sept. 30, 1993

For Appellant: Major Marilyn A. Gordon (argued); Colonel
lerry J. Woodhouse (on brief); Lieutenant Colonel Frank J
Spinner, Major Mary C. Yastishock, Major Alice M. Kottmyer

For Appelle: Captain Jane M.E. Peterson (argued); Colo-
nel Richard L. Purdon and Lieutenant Colonel Jeffery 1.
Infelise (on brief); Lieutenant Colonel Brenda J. Hollis, Ma-
jor Jeffrey C. Lindquist, Major Morris D. Davis, Major Paul
H. Blackwell, Jr., and Captain James C. Sinwell.

Military Judges: ROBERT M. RICHARDS (trial), PHiLip F
O'NEILL (DuBay), Jimmy D. PUETT (rehearing)

2a

Opinion of the Court

Cox. Judge

The critical facts of this appeal can be succinctly stated
Appellant made a highly incriminating statement to one of his
original trial defense counsel, though he later recanted the
incriminating portions of it. This statement, when made, clearly
fell within the protection of the attorney-client relationship
Mil.R Evid. 502. Ultimately, the incriminating version of the
statement was provided by the defense to various psychiatrists
enlisted by the defense to assist in the preparation and ad-
vancement of an insanity/partial-mental-responsibility defense
At the court-martial in question, appellant presented an insan-
ity/partial-mental-responsibility defense. The various defense
experts testified on direct examination that appellant lacked
mental responsibility Or was only partially mentally respon-
sible

Over defense objection, the military judge permitted the
prosecution to cross-examine the defense experts about the
content of the incriminating statement and its impact on thei
conclusions. The judge also permitted the prosecution, in
rebuttal, to introduce into evidence a copy of the statement
The primary questions before us, then, are whether the judge
erred in permitting the prosecution access to and use of the

incriminating statement

' These issues, as assigned by appellant, were

WHETHER THE AIR FORCE COURT OF MILITARY RE-
VIEW ERRED IN FINDING THAT APPELLANT WAS NO’
DENIED A FAIR RETRIAL AS A RESULT OF THE
GOVERNMENT'S ACCESS TO, AND PROBABLE USE OF,
ATTORNEY-CLIENT PRIVILEGES THAT WERE DIS-

3a

So framed, the issues admit of Hornbook-style resolution
We hold that the judge did not err in permitting the cross-
examination of the defense experts or in permitting introduc-
tion of the statement

lhe critical facts emerge from the somewhat more involved
backdrop of a court-martial, a limited evidentiary hearing, and
a rehearing. Prior to the initial trial, appellant made a series of
statements, both oral and written, to his counsel. These sev-
eral statements varied widely in content as to the degree of
recollection and culpability admitted. Ultimately, according to
counsel, appellant settled upon a particular, innocuous version
of the facts. This version was provided selectively to potential
civilian expert witnesses enlisted to assist in the preparation of
a mental responsibility defense. Appellant was thereafter tried
(September 4-November 27, 1984) by a general court-martial
on a charge of premeditated murder. Art. 118(1), Uniform
Code of Military Justice, 10 USC § 818(1). While this court-
martial was in progress, defense counsel discovered that ap-
pellant had made a seriously incriminating admission to one of

CLOSED IN AN EARLIER DUBAY HEARING ON
APPELLANT’S SUCCESSFUL CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL

WHETHER THE MILITARY JUDGE ERRED, TO THE SUB-
STANTIAL PREJUDICE OF APPELLANT, WHEN HE AD-
MITTED PROS. EX. 65
In addition, we granted review of two separate issues wherein appel-
lant challenged the authority of the military judge and the Court of
Military Review under the Appointments Clause. U.S. Const., art. I], § 2,
para. 2, cl. 2. We resolve both of those issues adversely to appellant in
accordance with our opinion in United States v. Weiss, 36 MJ 224 (CMA
1992), cert. granted, 113 S.Ct. 2412 (1993)

4a

the defense psychiatrists. Realizing that the prosecution would
readily discover this admission through cross-examination,
detense counsel elected not to call the witness or to present
the mental responsiblity defenses to prevent disclosure of the
admission. (24 MJ at 615-16) In default, the court-martial was
contested on a theory of failure of proof, and appellant was
convicted as charged

On appeal before the Court of Military Review, appellant
attacked his trial defense team. He theorized that counsel must
have been incompetent in bungling and failing to present his
lack of mental responsibility defenses. In starkly inconsistent
alternative, however, appellant also suggested that counsel
may have been attempting to perpetrate a fraud upon the
court-martial. In appellant’s hypothesis, the fraud would have
arisen from counsel’s preparation and dissemination of the
sanitized version of the statement, which counsel knew to be
false and misleading, to potential defense witnesses. In at-
tempting to manipulate the experts, and thus to “create” a
defense where none existed, counsel’s actions allegedly preju-
diced appellant when it appeared the true facts would come
out, collapsing the fraudulent defense in mid-trial. (Supple-
mental Brief on Behalf of Appellant, Feb. 7, 1986)

In the face of these serious allegations before the Court of
Military Review, the Government joined appellant in petition-

ing that court to order a limited hearing into the conduct of

Certainly appellant's urine was “fungibic” at that point. There was
nothing distinctive about her urine that would differentiate it from other
urine or that would differentiate it from her urine which might be
tampered with im some way. Further, there was nothing distinctive about
iis “packaging” that would make it anything other than fungible, since
the containers were typical of those provided by the Government for
urinalysis inspections. Cf United States v. Courts, 9 MJ 285 (CMA
1980). U/nited States v. Fowler, 9 MJ 149 (CMA 1980). United States v
Vault, 4 MJ 318 (CMA 1978)

Sa

counsel and the preparation of the mental responsibility de-
fenses. See United States v. DuBay, 17 USCMA 147,37 CMR
411 (1967). The court obliged the parties. (Unpublished order
dated March 5, 1986)

The military judge conducting the limited hearing com-
pelled the new defense team, over their objection, to produce
both the incriminating and the innocuous versions of appellant’s
statement. Both were received as hearing exhibits. The hear-
ing (May 6-8, 1986) featured an intense grilling of all members
of the original defense team regarding their preparation of the
mental responsibility issues. Particular emphasis was placed
on the circumstances surrounding the origin of the incriminat-
ing statement and its sanitized counterpart. In addition, both
the of the psychiatrists slated to testify for the defense at the
original trial testified. Both indicated that, from a psychiatric
point of view, appellant’s incriminating revelation did not
significantly alter their conclusions regarding his mental state
at the time of the killing. At the conclusion of the hearing, the
military judge entered extensive findings, including the finding
that “‘the potential defenses of insanity and of partial mental
responsibility were not ‘created’ defenses ” (Findings at
15)

On return to the Court of Military Review, appellant omit-
ted the fraud allegation. He relied exclusively on the claim of
incompetence through failing to prepare and present the men-
tal responsibility defenses. The Court of Military Appeals
agreed that the original trial defense team’s preparation on the
issue Of mental responsibility was inadequate. Accordingly,
that court set aside the findings of guilty and the sentence,
authorizing a rehearing. 24 MJ 611, 617-18 (1987).

The rehearing (June 29-December 9, 1987) was duly con-
vened by a different convening authority. None of the original
defense team represented appellant at the rehearing. At the
rehearing, appellant formally asserted defenses of lack of

Oa

mental responsibility and partial mental responsibility. In sup
port of these defenses, a number of experts were presented as
defense witnesses. As previously indicated, each had been
provided by the defense with the incriminating version of
appellant’s pretrial statement. Each witness acknowledged
taking appellant’s statement into consideration in articulating
his opinion at trial. As indicated, the Government was permit-
ted, over defense objection, to cross-examine these witnesses
about the statement’ and to introduce a copy of the statement
into evidence. Appellant was again convicted of premeditated
murder and was sentenced to a dishonorable discharge, con
tinement for lite, reduction, and forfeitures. The convening

iuthority approved the sentence, and the Court of Military

Review aflirmed 33 M 2 (1991)

Betore us, appellant again focuses on the turbulence gener
ited by the initial trial defense team. He argues that thei
inadequacies compelled him to attack them in order to demon
trate the unfairness of his trial. To that end, he argues, it was
necessary to bring into the light of day his highly incriminating
statement, this statement which otherwise would have re
mained enshrouded by the attorney-client privilege. Thus
ippellant contends, he was unfairly penalized in his subse
quent rehearing by the prosecution's cross-examination of his
vilnesses and by the receipt in evidence of the statement

lo put this in context, in order to present his mental respon
sibility defenses at the second trial, appellant found it neces
sary to call expert witnesses, armed with his incriminating

‘
i

statement. to testify about his mental condition at the time ¢

the killing. In providing his witnesses with the statement tn this

Indeed, as to cach defense expert, it appears that it was the defens:

on direct cxamination that first adverted to the incriminating statement

Ja

manner, appellant waived his privilege with respect to it. But
for this fact, we agree there would have made a dynamite
issue.’ As the case stands, however, its resolution becomes a
paradigm of simplicity

There is no physician-patient or psychotherapist-patient
privilege in federal law, including military law. Under certain
circumstances, here presumptively present, a physician, psy-
chotherapist, etc., who assists the defense in the preparation of
a defense may fall within the scope of the attorney-client
privilege. Statements or information provided to such experts
are privileged to the extent of the protection of the attorney-
chent privilege. (/nited States v. Tharpe, MJ (CMA
1993). United States v. loledo, 25 MJ 270, 275-76 (CMA
1987). However, when such experis are called as a witness on
behalf of an accused and the witness has relied upon state-

ments of the accused in formulating an opinion,* the attorney-

[he scenario could potentially arise anytime an accused makes an
incriminating statement, falling within the attorney-clicnt privilege, to
yunsel. If the accused subsequently accuses counsel of uncthical conduct
or incompetence in connection with that statement, such that the state-
ment must be revealed to cnable a court to deiermine whether uncthical
conduct or prejudice has occurred, has the accused waived the attorncy-
client privilege with respect to that statement, and if so to what extent?
Does it maticr if the alleged uncthical conduct or incompetence has not
occurred? We defer resolving these matters until such time as they are in
issuc before us

‘In this case, the majority of the Court of Military Review squarcly
found that it was “clear that defense experts used the statement in

+
5

reaching a diagnosis MJ at 972. The record of trial strongly
supports this conclusion, and we accept the Court of Military Review's
finding. Art. 67(c), UCMJ, 10 USC § 867(c) (1989). Thus. technically, it
iS not necessary on this record for us to reach a broad conclusion
regarding the admussibility of any and all statements made by an accused
to a physician/psychotherapist tendered by the defense, regardicss of
whether the statements were “used” by the expert in arriving at conclu-
sions. But cf Nogele v. Marshall, 706 F.2d 1408 (6th Cir. 1983). cert

8a

client privilege terminates with respect to those matters placed
in issue by the expert’s testimony. United States v. Toledo,
supra; United States v. Frederick, 3 MJ 230, 233-34 (CMA
1977); see generally McCormick on Evidence 384 (4th ed
1992); cf Mil.R.Evid. 302(c), Manual for Courts-Martial,
United States, 1984. Further, any expert who offers a testimo-
nial opinion is subject, at the request of a party opponent, “to
disclose the underlying facts or data on cross-examination.”’
Mil.R.Evid. 705. Thus the rehearing military judge did not err
in permitting the cross-examination of the defense experts

With respect to the prosecution’s direct introduction of the
incriminating statement, it was an admission by a party-oppo-
nent, Mil.R.Evid. 801(d)(2), and was admissible. Its relevance
and authenticity were established beyond cavil. These two
assignments of error are without merit

IV

The remaining granted issue asks whether the military judge
correctly instructed the court members regarding the defense
of partial mental responsibility; we resolve the issue as did the
Court of Military Review. 33 MJ at 990. The Uniform Code of
Military Justice has never identified a defense of “partial
mental responsibility.’”” However, the Manual for Courts-Mar-
tial in effect for appellant’s initial trial (Manual for Courts-
Martial, United States, 1969 (Revised edition) (as amended
through Change 7, effective September 23, 1982), described a
limited defense of “partial mental responsibility,” as being: “A
mental condition ... which produces a lack of mental ability

to possess actual knowledge or to entertain a specific

denied, 464 U.S. 1010 (1983); State v. Tensley, 249 N.W.2d 659 (lowa
1977), Townsend v. State, 420 So.2d 615 (Fla. App. 1982), pet. denied,
430 So.2d 452 (Fla. 1983), Annotation, Privilege, in Judicial or Quasi-
Judicial Proceedings, Arising From Relationship Between Psychiatrist
or Psychologist and Patient, 44 A.L.R.3d 24 (1972)

9a

intent or a premeditated design to kill ” Para. 120c.°

Without defense objection, the military judge rendered an
instruction at the rehearing on the defense of partial mental
responsibility in general accordance with the standard instruc-
tions set forth in paragraph 6-5, Military Judges’ Benchbook
at 6-4 (Dept. of the Army Pamphlet 27-9 (1985)). Appellant
now complains that the instruction was deficient in that the
judge omitted a phrase indicating that appellant need not be
insane in order to qualify for the defense of partial mental
responsibility. Final Brief at 90. Like the Court of Military
Review, we have carefully read the entirety of the military
judge’s instructions. There is no intimation in the instructions
that appellant needed to be “insane” in order to qualify for
partial mental responsibility. Indeed, we can detect no linkage
whatever in the instructions between the limited defense of
partial mental responsibility and the complete defense of “‘in-
sanity’ (lack of mental responsibility). We do not doubt that
the clarification now urged by appellant would have been
appropriate. However, we do not believe it was a sine gua non
or that the instructions given were incomplete or confusing
We hold that the objection now advanced was waived, and no
plain error occurred. U/nited States v. Fisher, 21. MJ 327
(CMA 1986)

The decision of the United States Air Force Court of Mili-
tary Review is affirmed

Chief Judge SULLIVAN and Judges CRAWFORD, GIERKE, and
WISS concur

* The Manual for Courts-Martial, United States, 1984, deletes refer-
ence to a defense of partial mental responsibility. But see United States
v. Berri, 33 MJ 337(CMA 1991), Ellis v. Jacob, 26 MJ 90 (CMA 1988)

10a
APPENDIX B

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 24758 (f rev)

UNITED STATES

STAFF SERGEANT CLYDE EDWARD LYMAN MANSFIEFI
FR 048-44-1263 UNITED STATES AIR FORCI

Sentence adjudged 27 Nov. 1984
24 April 1987

Approved Sentence: Dishonorable discharge, confinement
for length of natural life, forfeiture of al! pay and allowances
and reduction to airman basic

Appellate Counsel for the Appellant: Luther C. West, Bal
timore, Maryland, Colonel Leo L. Sergi and Major Timothy J
Malloy

Appellate Counsel for the United States: Colonel Joe R
l.amport, Lieutenant Colonel Robert E. Giovagnoni, Major
David F. Barton and Captain Mare Van Nuys

Before HopGson, Foray and Murpock, Appellate Military
Judges

DECISION

Hopcson, Chief Judge

rhe appellant was convicted of the premeditated murder of
his paramour’s former husband. He was sentenced to life im-
prisonment together with ancillary punishments

lla

The paramount issue before us goes to the heart of our
adversarial process—the right to the effective assistance of
counsel in presenting a defense. In this regard the appellant
claims that his trial attorneys failed to investigate, prepare and
present properly either an insanity or diminished capacity de-
fense. We agree

In the initial appellate pleadings this issue centered on the
question of whether trial defense counsel committed the appel-
lant to an insanity defense without weighing the consequences
of such a defense, i.e., disclosure of damaging inculpatory
statements by the appellant to his expert witness, and thereafter
abandoning the defense midway through the trial because of the
trial judge’s order compelling production of these statements
See United States v. Parker, 15 M.J. 146 (C.M.A. 1983). The
defense, by its questioning of members during voir dire, cross-
examination of prosecution witnesses, and pretrial declarations
to the prosecution, made it clear that the appellant’s mental
condition was the core issue in the trial

his claim of ineffective assistance of counsel is based on the
representation made by the appellant's trial lawyers to the mili-
tary judge that Doctor Michael B. Coburn would not be called
as a witness because of the judge’s order directing production
of a statement made by the appellant at the direction of his
counsel which was given to Doctor Coburn. Doctor Coburn
was a defense psychiatrist who had travelled from the United
States to Korea and was waiting outside the courtroom while
this discussion took place. At trial, counsel asserted that the
judge’s ruling “‘[A]ffected the entire strategy of the defense’’
and their post-trial affidavits contends that ‘‘[T]he defense was
precluded from presenting to the trier-of-fact expert opinion
regarding the issue of the accused's mental responsibility, an
affirmative defense. ”’

On 3 January 1986, appellate government counsel responded
to this issue with a reply brief and supporting affidavits from the

defense counsel involved. Subsequently, the appellant moved to
file a supplemental brief contending that the post-trial state-
ments of trial defense counsel expanded the issue of ineffective
asssitance of counsel by raising additional questions of: (1)
Whether defense counsel acted improperly and contrary to their
obligation to the appellant and the court by instructing him to
withhold material information from Doctor Coburn, a defense
psychiatrist, and (2) Whether this conduct so prejudiced the
appellant that he was denied effective assistance of counsel and
therefore a fair trial

On 11 February, government and appellate defense counsel
jointly and severally asked for a limited evidentiary hearing
because the trial transcript, pleadings and supporting affidavits
suggested there were substantial and unresolved questions in-
volving the appellant’s lack of mental responsibility and claim of
ineffective assistance of counsel. We ordered such a hearing and
it was held on 6-8 May 1986. United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The trial judge who
conducted the hearing prepared and submitted extensive find-
ings of fact which have made our task measurably easier.

The trial and evidentiary hearing transcripts disclose that the
appellant was apprehended at Edwards Air Force Base, Califor-
nia on 5 April 1984, for the murder of Yang Chae-Song, near
Osan Air Base, Korea, on 4 February 1984. It was at Edwards,
during a pretrial confinement hearing, that the appellant entered
into an attorney-client relationship with Captain P, the Area
Defense Counsel. Captain P became one of four military law-
yers who assisted in the appellant’s defense. The other three
were the Chief Circuit Defense Counsel for the 7th Circuit,
Lieutenant Colonel N, Circuit Defense Counsel, Major P, and
the Area Defense Counsel at Osan Air Base, Major, then Cap-
tain, H. It was during the confinement hearing that Captain P

l3a

became aware of the appellant’s ‘‘bizarre behavior’ and ‘‘ob-
session’’ with Un-Cha Haney who was the Korean wife of an
Air Force member, the former wife of the deceased, and the
appellant’s lover. Captain P did not, however, pass this informa-
tion, or his assessment of it to his co-counsel

After the appellant was returned to Korea on 20 April, he was
sent to Yokota Air Base, Japan for a sanity board hearing. He
refused to participate in the proceeding on advice of counsel as
his attorneys did not yet know enough about the case. Later. in
June, Lieutenant Colonel N and Major H requested a sanity
board citing the appellant’s ‘‘preoccupations and obsessions, ’’
his behavior described by numerous individuals as ‘‘crazy and
bizarre,’’ and his referral to the Mental Health Clinic at Edwards
by his unit commander in early January 1984. On 21, 22 and 25
June, he met a one member sanity board consisting of Lieuten-
ant Colonel (Doctor) Robert L. Vosburg. Doctor Vosburg was
of the opinion that the appellant had a mental disorder described
as a post traumatic neurosis, chronic. See American Psychiatric
Institute, Diagnostic and Statistical Manual for Mental Disor-
ders (DSM), 3d Ed. 1980. page 326. In Doctor Vosburg’s view
the appellant had a diminished capacity to appreciate the crimi-
nality of the alleged offense and lacked the capacity to conform
his conduct to the law as a result of the mental disorder. The
appellant's attorneys were both ‘‘somewhat surprised’’ and
““elated’’ with the outcome of the sanity board, and it was at this
time the defense team first considered insanity to be a viable
defense. However, Major H was concerned that Doctor Vosburg
lacked experience and might not be a ‘‘strong witness.’’ Despite
this doubt, he did not discuss the insanity defense with Doctor
Vosburg because Major P was responsible for preparing this
aspect of the trial

The “team concept’’ employed by the appellant’s attorneys
is troublesome because no lawyer served as ‘‘lead counsel’’
Therefore no one was totally familiar with the overall posture of

l4a

the case and no one could be the final arbiter on tactics and
strategy. It is also apparent that after it was decided to focus the
defense efforts on the sanity issue, Lieutenant Colonel N be-
came less active in the ongoing trial preparations, although both
Majors P and H regularly consulted him by phone.

At this point the appellant’s counsel felt they needed addi-
tional expert testimony to bolster Doctor Vosburg’s opinion
Knowing that the appellant would be returned to Edwards for a
portion of the pretrial investigation, they arranged for Captain P
to locate civilian psychiatrists in the local area. Captain P set up
appointments with Doctors Michael B. Coburn, John Beck, and
William T. Vicary. Although Captain P and the appellant still
had an attorney-client relationship, he never discussed the re-
sults of these evaluations with the examining psychiatrists or
with the other defense counsel. It is evident that Captain P’s
involvement with the case substantially diminished after Majors
P and H were appointed and that he did not regard himself as an
active member of the defense team There is also a suggestion
that the appellant was dissatisfied with Majors P and H, and
wanted Captain P to represent him. Captain P did not encourage
the appellant in this regard, and explained the advantages of
having lawyers who were near the trial location

Later, Captain P did have some contact with Doctor Coburn
over the logistics of the latter’s trip to Korea as an expert
witness. He did not, however, discuss with Doctor Coburn his
opinions as to the appellant’s mental state

Subsequent to the psychiatric evaluations, Captain P realized
that Doctor Vicary could support a defense of partial mental
responsibility, but made no attempt to discuss his conclusions
with the psychiatrist or to pass this information to his co-
counsel

On 16 August, Doctor Beck sent Captain P a written evalua-
tion of his examination of the appellant. Doctor Beck concluded
that at the time of the alleged offense the appellant had a mental

lSa

defect, i.e., a Mixed Personality Disorder and as a result of such
mental defect he lacked capacity to conform his conduct to the
requirements of law. At the time of the evidentiary hearing,
Captain P did not recall the letter’s contents and surmised he
had forwarded it to Majors P and H who received it before trial
Neither Major P nor Major H considered Doctor Beck’s diag-
nosis to support an insanity defense. But see United v. Benedict,
20 M.J. 939 (A.F.C._M R. 1985) holding that the term ‘‘mental
defect’’ includes any abnormal condition of the mind. regardless
of its medical label, that substantially affects mental or emo-
tional processes and substantially impairs behavior controls

Finally, in September, Doctor Coburn called Captain P to
advise him that he had changed his initial opinion and he could
now support an insanity defense. Doctor Coburn sent Captain P
a written evaluation, and the latter forwarded it to co-counsel in
Korea

Both Majors P and H were present during the pretrial investi-
gation held at Edwards on 26 July. Major H did not contact the
three civilian psychiatrists while he was in California because he
regarded Major P to be the ‘‘defense team member’’ respon-
sible for the insanity defense

Likewise, Major P, the attorney responsible for presenting
the insanity defense, did not interview the civilian psychiatrists
while he was at Edwards. Apparently, he was led to believe that
all three doctors found that the appellant had a personality
disorder and that their expert testimony would not support an
insanity defense. It was also his understanding that an insanity
defense could not be based on a personality disorder. As stated
earlier this position is not supported by case law. See United v.
Benedict, supra; United States v. Krauss. 20 MJ. 74]
(N.M.C.M.R. 1985): United States v. Haywood, 18 MJ. 562
(A.C.M_R. 1985)

During the pretrial investigation both attorneys learned of
approximately 37 lay witnesses who felt the appellant was

l6a

‘strange’ or “‘crazy.”’ In a 29 October 1984 letter, they asked
government counsel to provide the names and addresses of
these witnesses. Other than this request, there is no indication
that this lay witness evidence was explored, evaluated or mar-
shalled to contribute to an insanity defense in any meaningful
way.

After Doctor Coburn concluded he could support an insanity
defense, Major P contacted him by telephone from Japan. He
did not, however, discuss Coburn’s testimony with him until the
latter’s arrival in Korea. It was at this time that Major P first
provided Doctor Coburn with the definition of insanity that
would be applied in a military court-martial. See Air Force
Regulation 160-42, Psychiatry in Military Law, 25 September
1981. Major P was aware of Doctor Beck’s evaluation, but
never discussed it with him because of Major P’s assumption
that it would not support an insanity defense. Likewise, he never
discussed Doctor Vicary’s opinion with Vicary although it could
have supported the potential defense of partial mental responsi-
bility. Neither Major P nor his co-counsel ever pursued this
potential defense notwithstanding the opinions of every defense
psychiatrist who examined the appellant that he had an emo-
tional disorder

The law ts clear that a mental condition not amounting to a
general lack of mental responsibility but which produces at the
time of the offense a lack of mental ability to enter a premedi-
tated design to kill is a defense to an offense having this state of
mind as an element. R.C.M. 916(k)(2); see also United States v
ikrb, 30 C.M.R. 938 (A.F.B.R. 1960), aff'd 12 U.S.C.M.A
524, 31 C.M.R. 110 (1961)

In early September 1984, the trial judge ordered the appellant
to submit to a second sanity board to be convened at Travis Air
Force Base, California. This board, consisting of three psychia-
trists, opined that the appellant did not have a mental disease or
defect. No effort was made by either Major P or Major H to

17a

have Captain P, who was stationed in California, interview the
members of the second sanity board; nor did Major P interview
the board president until after his arrival in Korea as a govern-
ment witness just before the beginning of or early in the trial

After Major H met the appellant in late April 1984, he
obtained from him an oral version of the circumstances sur-
rounding the commission of the offense which he later reduced
to writing. This statement suggested a high degree of culpability
on the appellant’s part. Because Major H concluded that the
appellant was not completely forthcoming with the facts, he
edited the first written statement into a second written state-
ment. Since the appellant later recanted much of the inculpatory
information in the first statement, indicating that some of the
story was false, embellished, or dreamed, Major H edited the
first statement to include only information that was to some
degree, verifiable. The appellant’s first version indicated he had
hired a ‘‘hit man,’’ a Korean national, to kill the victim. The
second written statement became the factual scenario the appel
lant was instructed by his lawyers to give during psychiatric
interviews. This version omitted information relating to the
possible procurement of a ‘“‘hit man,”’ purchase of a knife
shortly before the homicide and the manner of its use at the
scene

Both Doctor Vosburg and Doctor Coburn eventually learned
of the ‘‘hit man’’ aspect of the appellant's story and both
indicated it did not substantially effect their diagnoses of his
mental condition

When Doctor Vosburg arrived in Korea he was interviewed
it length by the appellant's co-counsel Although Vosburg ba
cally agreed with Coburn as to the appellant's mental state, both
counsel still considered him a weak witness because he was

nervous’ about testifying since he was not a forensic psychia
trist

Doctor Coburn arrived in Korea approximately the same day

the prosecution rested its case-in-chief He was prepared t

18a

testify that at the time of the offense the appellant was ‘‘sub-
stantially lacking the capacity to have conformed his conduct
to the requirements of law [that] substantially diminish[{ed] his
capacity to have appreciated the criminality of his conduct

’* He would further state that the appellant ‘‘was acting in a
significantly and substantially impaired state at the time of the
offense, substantially lacking in capacities requires continuing
treatment because suicidal potential.’ (Emphasis added)

rhe decision to abandon the insanity defense was made after
Doctor Coburn’s arrival in Korea and the discovery of the ‘‘hit
man’’ information in his notes. Appellant’s counsel believed
disclosure of this information would have had a devastating
impact and would have created a substantial risk of their client’s
conviction of premeditated murder. Additionally, they were
convinced that the value of Coburn’s testimony was lessened as
counsel were not prepared to deal with the ‘‘hit man’’ factor of
his testimony. Of course, the reason Doctor Coburn was not
aware of this information earlier was that the defense team had
withheld it. In the evidentiary hearing, Doctor Coburn stated
that the “‘hit man’’ disclosure had not changed his opinion
regarding the appellant’s lack of mental responsibility and could
have been accommodated in his explanation of psychodynamics
of the events leading up to the homicide

Appellant’s counsel stated during the evidentiary hearing that
they were aware from the outset that if they presented expert
testimony of a psychiatrist as to the appellant’s mental condi-
tion, they would be required to produce materials and state-
ments by the appellant, which had been used by their witness for
use during cross-examination. See United States v. Parker,
supra. They contended that their claim in the Goode response
that the trial judge’s ruling was erroneous and caused the
collapse of the insanity defense was merely a pro forma asser-
tion of error without any belief in its validity. (/nited States v
(,oode, 1 MJ. 3 (C.M.A. 1975)

19a

Appellant’s counsel maintained they had proceeded from the
beginning with a two-pronged strategy: first, to put the pros-
ecution to its to establish beyond a reasonable doubt that the
appellant had killed the victim; and, second, to demonstrate the
appellant's lack of mental responsibility for commission of the
offense. For reasons discussed earlier, the decision was made
not to present any evidence, including evidence touching on the
appellant's lack of mental responsibility. The Chief Circuit De-
lense Counsel, Lieutenant Colonel N, discussed the situation
with co-counsel, and even though he thought there was an

overwhelming danger’ in abandoning the insanity defense at
that point in the trial, he chose no to ‘‘override’’ their decision
When trial defense counsel consulted Captain P, he told them he
thought the decision a ‘‘dangerous’’ course of action

The Sixth Amendment and the Uniform Code of Military
Justice guarantee a criminal defendant reasonably effective as-
sistance of counsel. Article 27(a), UC MJ._10USC § 827(a)
(uyler v. Sullivan, 446 U.S. 335. 344. 100 S Ct. 1708 1716,
64 L.Ed.2d 333 (1980): U/nited States v Jefferson, 13 MJ. |
(CMA. 1982). But this right does not mean that appellate
courts should vacate a conviction on a claim of ineffective
counsel in the absence of a display of a serious lack of skills that
are regularly found in the performance of fallible lawyers. United
Slates v. Dit ‘upe, 21MJ.440(CMA 1986). see also United
Mates v. DeCoster, 624 F.2d 196 (DC Cir 1979). Because
claims of inadequate representation are oft-times made by disaf-
lected cliehts seeking to assign the blame for their predicament
to their lawyers rather than themselves, the law presumes that
counsel ts effective, and places upon an appellant the burden of
establishing ineffectiveness. Commonwealth y. Molina, 358
Pa Super. 28, 516 A.2d 752 (1986)

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052.
80 L.Ed 2d 674 (1984), the Supreme Court set out a two part

0
he a

test to determine whether a conviction should be set aside on
the ground that the trial defense counsel was ineffective: (1) the
appellant must show that counsel’s performance was deficient
and (2) that the deficient performance prejudiced the defense
lo satisfy the first prong of the test, the appellant must show
that counsel’s actions fell beneath an objective standard of
reasonable professional assistance. The second prong ts satis-
fied by showing that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a prob
ability sufficient to undermine confidence in the outcome of the
trial. An insufficient showing of prejudice leads to a rejection of
the claim without inquiry into the adequacy of counsel's perfor
mance. Of course, the mere fact that conviction has resulted
does not meet the criteria of prejudice. See Bates v. Blackburn
805 F.2d 569 (Sth Cir. 1986)

,

lhe standards of what constitutes ineffective assistance
counsel utilized by most of the federal courts have been adopted
by the military appellate courts. United States v. Jefferson
supra. In Uuted States v. Rivas, 3 MJ. 282, 288 (CMA

1977), the Court of Military Appeals stated

We believe that to exercise the skill and knowledge
which normally prevails within the range of compe
tence demanded of attorneys in criminal cases re
quires that the attorney act as a diligent and conscien-

tious advocate on behalf of his client

Disagreements as to the strategic or tactical decisions made
at the trial level by defense counsel will not support a claim of
inefiective assistance of counsel so long as the challenged con
duct has some reasoned basis. Appellate courts will not review
the wisdom of a defense counsel’s tactic unless it lacks a
plausible basis. United States v. Rivas, supra, United States \
Rogan, 19M_.J.646(A.F.C.M._R. 1984), see also State v. Stone,

5

2la

Sl Ariz. 455, 728 P. 2d 674 (1986), Bass v. State, 713 S.\W.2d
782 (Tex. App. 1986). Any claim of inadequate representation is
to be determined by the facts of that particular trial and the
existing circumstances under which counsel’s decisions were
made See generally Makenson v. State, 719 SW2d 112
(Mo App. 1986)

[he basic claim of error made by appellant's appellate coun-

is that the defense lawyers in the trial below failed to
nvestigate, prepare and present evidence which would properly
ipport the defense of insanity or diminished capacity so as to
‘duce the degree of guilt
[he right to reasonably competent counsel includes a correla-
duty on defense counsel to undertake reasonable steps to
estigate all open avenues of defense Wood v. Zahradnick

‘8 F 2d 980 (4th Cir. 1978). We think a reasonable level of

mpetence to be demanded of attorneys in criminal cases is to

vestigate facts known to, or with diligence accessible to them.
which would raise a reasonable doubt as their client’s mental
ondition. Oshorne v. Commonwealth. 378 Mass 104. 389
N_E 2d 981 (1979)

We have no doubt that defense counsel in the trial before us
honestly and sincerely attempted to insure that the appellant was
provided every possible defense. Much of what they did during
the trial and before demonstrates diligent and conscientious
endeavors on their part to represent their client properly. Unfor
tunately, their collective efforts with regard to the defense of
insanity did not rise to the level of representation than the law
requires

From the outset it appears that no one counsel was given
overall responsibility of orchestrating the defense efforts. Re-
sponsibility was divided so that everyone was in charge and yet
no one was in charge. For example, the Chief Circuit Defense
Counsel thought the decision to abandon the insanity defense
was ‘‘overwhelmingly dangerous’’ at that point in the proceed-

alliance eels

22a

ings, yet did not use his position as the professional supervisor
of defense counsel to intercede. See Air Force Manual 111-1,
Military Justice Guide, | August 1984, para. 13-3e. Although,
Captain P was the first counsel to enter into an attorney-client
relationship with the appellant, he did not consider himself part
of the ‘‘defense team’’ and limited his participation to providing
logistical support for appointments with the psychiatrists. After
Majors P and H arrived at Edwards for the pretrial investiga-
tion, neither they nor Captain P ever spoke with the three
civilian psychiatrists as to the results of their interviews with the
appellant. It was through casual conversations with legal office
personnel that Major P ‘‘heard’’ that all three doctors con-
cluded that the appellant had a personality disorder. Addition-
ally, both Majors P and H appeared to be unaware that a
personality disorder can be the basis of an insanity defense or
can be used to lessen the degree of culpability of the offense
charged, ie., premeditated to unpremeditated murder. See
R.C.M. 916(k)(2); United States v. Benedict, supra; United
States v. Krauss, supra; United States v. Heywood, supra.
Further, none of the attorneys interviewed or evaluated the
numerous lay witnesses who thought the appellate was ‘‘strange’’
or “‘crazy.’’ In this regard Captain P was stationed at the same
base as these witnesses.

Although defense counsel asserted during the evidentiary
hearing that the insanity defense was but one defense theory, the
other being to put the government to its proof on the evidence
proper, the thrust of voir dire, challenges, preliminary instruc-
tions by the trial judge, and questioning of prosecution wit-
nesses clearly made insanity the core of the appellant’s defense
In this context, to uphold the decision to abandon this defense
after the prosecution rested would require an explanation that is
reasoned and plausible. Such an interpretation is not possible in
this case

Doctor Coburn, a forensic psychiatrist with impressive cre-
dentials, appears to be the key to the appellant’s insanity de-

23a

fense. He had examined over 800 defendants in homicide cases
as well as thousands of other offenders. He was prepared to
testify that the appellant was legally insane. The basis for fore-
going Coburn’s testimony was the knowledge that the prosecu-
tion knew about the ‘‘hit man’’ aspect of the appellant’s pre-
pared statement, and this disclosure was ‘‘devastating’’ to both
the defense theories, i.e., reasonable doubt and insanity. During
oral argument appellate government counsel suggested that the
available prosecution rebuttal evidence as to the appellant's
mental state was so compelling that the failure of appellant’s
counsel to offer evidence on this issue was not prejudicial. We
reject this premise. If there is one area where expert witnesses
are almost always diametrically opposed, it is the field of psy-
chiatry. See United States v. Neely, 21 MJ. 606 (AF. CMR
1986), United States v. Benedict, supra. Doctor Coburn stated
at the evidentiary hearing that the introduction of the ‘‘hit man’’
theoy did not alter his diagnosis

We wish to make clear that we are not holding that a defense
counsel must always offer evidence in his client’s behalf We
know full well that many times the hes? trial tactic is to put the
prosecution to its proof. Likewise, we also know that defense
theories can and must be changed during a trial to fit changing
conditions, and where there is a reasoned plausible basis for the
decisions and tactics of counsel, we will not upset a conviction
on a claim of inadequate representation

However, the trial and evidentiary hearing transcripts in the
case at hand force us to conclude there was a fatal breakdown in
the adversarial process that our system counts on to produce
just results. kwing v. Williams, 596 F.2d 391 (9th Cir 1979)
Accordingly, this conviction cannot stand. In our decretal para-
graph we will fashion a remedy

The appellant asks that the charges be dismissed since a total
of 210 calendar days had elapsed from the day he was placed in

24a

pretrial confinement to date of trial. R.C.M. 707. In denying the
motion to dismiss, the trial judge found that only 85 days of the
total was accountable to the government. R.C.M. 707(c). We
have examined the judge’s findings of fact, the appropriate case
law and the transcript. We find no basis to overturn his ruling
denying the motion to dismiss

iV

rhe findings of guilty and the sentence are set aside. A

rehearing may be ordered

Senior Judge Foray and Judge Murpock concur

25a
APPENDIX C

US. AIR FORCE COURT OF MILITARY REVIEW

ACM 24758 (reh.)
UNITED STATES
¥

STAFF SERGEANT CLYDE E.L. MANSFIFI 1.
FR 048-44-1263 UNITED Starrs AIR Forc}

sentence adjudged 9 Dec. 1987
Mecided 21 Nov. 199]

Appellate Counsel for the Appellant: Major Paul M
Dankovich (argued), Colonel Richard F. O’Hair. and Colonel
Jeffrey R. Owens

Appellate Counsel for the United States: Lieutenant Colonel
Brenda J. Hollis (argued), Colonel Joe R Lamport, Colonel
Robert E. Giovagnoni, Major Paul H. Blackwell. Jr. Major
Morris D. Davis, Major Terry M. Petrie, and Captain James C
Sinwell

Before Murpock, HopGson and LEonarp. Appellate Military
Judges

OPINION OF THE COURT UPON REHEARING

I {¢ IDGSON, Chief Judge

On 4 February 1984, the body of Yang Chae-Song was
discovered in an alley near the train station in Song-Tan, Korea
Yang had been fatally stabbed in the back. The city of Song-Tan
borders the west side of Osan Air Base. a major American

26a

military installation. The appellant, Staff Sergeant Clyde
Mansfield, was convicted of Yang’s premeditated murder in
November 1984 and sentenced to life imprisonment and acces-
sory punishments. On appellant’s initial appeal we concluded he
had been denied effective assistance of counsel, set aside the
findings of guilty and the sentence, and authorized a rehearing.
United States v. Mansfield, 24M.J. 611 (A.F.C.M.R. 1987). At
the second trial in December 1987, the appellant was again
convicted of premeditated murder and sentenced to life impris-
onment in addition to lesser penalties

In March 1991 both sides completed their pleadings, and the
28 assigned errors ripened for consideration and resolution. We
find no prejudicial error and affirm

FACTS

During the summer of 1983, Mansfield was assigned to
Hawes Air Force Station, California, as an electrical power
plant technician. While he was not well-liked at the site, as he
did not make friends easily, he was considered to be a compe-
tent non-commissioned officer. He was described by co-work-
ers and associates as a ‘‘perfectionist’’ who was ‘“‘meticulous
and careful in his approach to problems.’’ Once he decided on a
course of action, it was difficult to dissuade him from following
through.

The testimony at trial also established that the appellant was
attracted to oriental women, and he actively sought their
compansionship. His first wife was Japanese, but the couple
divorced after 10 years. He retained custody of their son.

Technical Sergeant Russell Haney worked with the appellant
at Hawes AFS. He was married to a Korea, Un-Cha. Previously,
Un-Cha had been married to the murder victim, Yang Chae-
Song, but she divorced him arid married Haney in 1982. Un-Cha
and Yang had two children, Sabina and Michael, who came to
the United States with Un-Cha

27a

Sometime in the late winter or early spring of 1983, the
appellant asked Un-Cha to baby-sit his son. She agreed. This
acquaintance later developed into a close relationship. The
affair was an open secret at Hawes with the appellant speaking
candidly of his love for Un-Cha. Haney became aware of the
situation but was assured by Un-Cha that her relationship with
Mansfield was not serious

Myong-Cha Stein is Korean and during June 1983 lived with
her husband, Technical Sergeant Richard Stein and their two
daughters, Sandra and U-Sok, in an apartment near the train
station in Song-Tan. Their landlord, Yang Chae-Song, had
Myong-Cha call Un-Cha Haney and tell her that he, Yang, was
seriously ill and would like to see his children before he died
This was not true. It was merely a scheme designed to allow
Yang to get the children back in his custody. It was successful
Once the children were in Korea, Yang refused to let them
return to the United States. Haney and Un-Cha went to Korea
to locate them, but could not. Haney returned to the United
States, but Un-Cha remained in Korea to continue the search

Although she returned to the United States much earlier.
Haney did not see Un-Cha again until September. There is an
indication that Mansfield provided some of the money for the
trip to Korea. The situation concerning the children upset
Mansfield, and he told a co-worker, that he would ‘‘do what-
ever it took to get the children back.’” When Un-Cha said she
lacked the funds to return to the United States, Mansfield sent
her the money

In July, after Un-Cha returned from Korea. she and Mansfield
took a 12-day trip to Alaska to visit her sister, Eun-Hui Bend-
ing, whose husband was stationed there. It was apparent to Mrs
Bending that Mansfield was deeply in love with Un-Cha. It was
during this period that Un-Cha believed she was in love with
Mansfield

Some that summer Un-Cha said she wished to undergo breast
enlargement surgery. Mansfield arranged for the procedure and

28a

agreed to pay for it. The two consulted a doctor in Las Vegas,
Nevada. After being told there would be a 2-week convalescent
period, Mansfield rented an apartment in Las Vegas for “‘Mrs
Un-Cha Mansfield.”’ On 7 September, while the two were
returning to Las Vegas for the operation, Un-Cha who was
driving, lost control of the car. The resulting accident left Un-
Cha permanently paralyzed from the waist down. Mansfield
suffered only minor injuries.

Sergeant Haney first learned that Un-Cha had returned from
Korea and was in the hospital when he received an ambulance
bill for his wife in mid-September. When he went to Las Vegas
to visit Un-Cha, Mansfield was there. Medical personnel at the
hospital, and later at the rehabilitation center, initially thought
Mansfield was Un-Cha’s husband as he was always there with
gifts. Un-Cha, however, was equally affectionate with both her
husband and Mansfield.

After Un-Cha returned home to her husband’s quarters on
Edwards Air Force Base, Mansfield would drive by the Haney
residence at all hours and leave notes for her in the bushes
surrounding the house and under rocks. He would also hang
around Haney’s house and yard. This came to a head on 28
November, when a security policeman was summoned and
found Mansfield crouched under the Haney’s bedroom window
Mansfield told the investigating officer that he and Un-Cha were
‘good friends’’ and that he and Haney were ‘‘bitter enemies.”’
In his attempt to have Un-Cha leave her husband and marry him,
Mansfield had his sister call Un-Cha and pretend to be Haney’s
girl friend.

It was the consensus of Mansfield’s co-workers that the
accident deeply affected him. For example, he told all who
would listen that he was ‘‘in love’’ with Un-Cha, wanted to
marry her, and was responsible for her injuries. He also an-
nounced he thought Un-Cha’s husband was mistreating her
after the accident. It was, however, the “‘peeping Tom’’ inci-

29a

dent that caused the deepest concern to Mansfield’s site chief
The site chief, a senior non-commissioned officer, discussed the
episode with Mansfield and ordered him, on 8 December, to
refrain from contacting Mrs. Haney while she was married

On 17 January 1984, the situation between Mansfield and
Un-Cha Haney had reached a point that the site chief referred
Mansfield to the Edwards Mental Health Clinic for evaluation
On 25 January 1984, Doctor (Col) Oscar Juarique, a psychia-
trist and Chief of Mental Health at Edwards, interviewed
Mansfield. He found Mansfield ‘‘agreeable, calm, relaxed and
not overly depressed.’’ Dr. Juarique concluded that while
Mansfield had some problems, he was ‘‘fully responsible for
his actions.’’ At this same general time, Mansfield went to the
Edwards Housing Office, said he was going to get married, and
that his fiancee was in a wheelchair and had two children. He
inquired about modifying base quarters to accommodate her
condition

In early January 1984, Mansfield asked for 30 days leave to
go to Korea “‘to rest and recuperate and to take care of some
business [there].’’ Because of local manning requirements and
because he was scheduled to be assigned to Korea, the leave
was denied. Subsequently, Mansfield persuaded his site chief to
give him 6 days leave beginning in late January to help his sister
in Arizona move. The second leave application was submitted
after his assignment to Korea was canceled

Mansfield began his leave on 28 January. Before he left on
leave, his immediate supervisor reminded him that he had to be
back for duty on 2 February. A co-worker took him to the Los
Angeles International Airport where he enplaned for Kimpo
International Airport, Seoul, Korea. He arrived in Korea at
approximately 1840, 29 January, Korea time

Mansfield went from the airport to the Hamilton Hotel in
ltaewon, a suburb of Seoul, Korea, where he stayed from 29
January to 3 February. While a guest at the hotel, Mansfield

30a

struck up an acquaintance with the hotel manager and a bellman
and would go to bars with them. During their conversations,
Mansfield displayed a photo of a Korean woman in a wheelchair
whom he said was his wife. Mansfield indicated his wife’s ex-
husband was the cause of her injury, and that he had come to
Korea for “‘revenge.’’ During his stay in Korea a number of
phone calls were made between him and Un-Cha and between
Un-Cha and the Stein/Yang residence in Song-Tan. He also
called Un-Cha’s sister in Alaska, but denied he was in Korea

On 2 February, the owner of a rice store near the Song-Tan
train station testified he saw an American fitting Mansfield’s
description making a phone call from a booth near his shop. He
later identified Mansfield as the person making the call. During
this same period, Mansfield made numerous phone calls to the
Stein/Yang house asking for Yang. Although Mansfield used
various false names, the persons taking the calls recognized the
voice as his. Each time he called, mansfield said he had a letter
or package for Yang. During the afternoon of 3 February,
Sabina Haney, Un-Cha’s 9-year-old daughter, saw Mansfield in
an alley near their house, but he acted like he did not know her

At about 1730 hours, 3 February, Yang answered the phone,
looked bewildered, and handed the phone to Technical Sergeant
Stein who was standing nearby. The caller, who spoke ‘‘very
fluent English,’’ told Stein his name was ‘‘Sergeant ?Wilson,”’
and that he had a letter and package for Yang. He suggested
that they meet at the Son-Tan Hotel Coffee Shop at 1900 that
evening. Yang and Stein went to the hotel which was close by,
but found no “‘Wilson.”’ They both waited about an hour and
left. When Stein arrived home early the next morning, Yang was
not there. Yo Sum-Cha lives near the Song-Tan train station. At
approximately 2115, 3 February, she heard an argument, par-
tially in English, in the alley near her apartment. At the same
time, Ho Non-Yi, who also lives nearby hearing running foot-
steps.

Mansfield caught a taxi at the Osan Air Base Main Gate at

approximately 2] if) ; Fehn) ry and h id sf take him tc Se

:

He left Korea at about 1240 4 February. K

rean time. and

arrived in Los Angeles at 113 + February, California time
Later on 4 February, there was a disturbanc e when Mansfield
attempted {tO pass a note ft Ln-Cha at the t-dwards Ba
| heater The se inity p e were lied Nut the ?
found

Yane's bod , na '

itel 52 + Felt H is f 1 and |
eather jacket with a hole in the back \ stainless steel kitcher
Knife was lying near the t dy Thecrime s Is three-quart

fa mile from the Osan Main Gate and near the Song- Tan Hote
ind the train station. The autopsy establis!
is a single stab wound in the back which penetrated the ribs a
severed the aorta. Death occurred almost immediatel, Ihe
vould was consistent with the knife found it the
time of death could not be pinpointed. but wa

time between 2100 and 2200 hours 3 Febn iry Th

defensive wounds or injuries to the body. and no signs of
struggle
Mansfield became a suspect almost immediatels upon the

discovery of Yang’s body. On 4 April, he was arrested at Hawes
and questioned. After proper warnings and advice as to the right
to counsel, Mansfield acknowledged knowing Un-Cha and stated
he loved her. He said he knew her children were the most
important thing in her life, and she had told him she would never
divorce her husband until she had her children He admitted
calling Un-Cha from Korea, but denied discussing the children
during any of the calls

Mansfield was returned to Korea in mid-April 1984, and
placed in pretrial confinement. During this confinement he stated
to a fellow prisoner, ‘‘I’m in this piace for a killing a
gook. I mean, they think I killed a gook.”’ After his first

32a

trial, when asked by co-workers if he had killed Yang, he
cryptically replied, ‘‘I’m not going to say I did, and wouldn't
say I didn’t.”’ He indicated that such a response was necessary
‘‘because it’s not over’’ and ‘‘there’s a possibility there will be a
round two.”’ There is some evidence that Un-Cha suggested to
Mansfield that if her first husband were dead, she would get the
children back. Mansfield also indicated to the Korean wife of a
co-worker that he was going to Korea to kill Yang so that Un-
Cha could get her children back. This woman thought he was
serious, and tried to talk him out of it

Captain Mark Paris is the Chief Psychologist, Directorate of
Mental Health, United States Disciplinary Barracks, Fort
Leavenworth, Kansas. In mid-June 1985, Mansfield told Davis
he want to Korea to bring back Un-Cha’s children. He said he
saw Yang and initially Yang agreed to return the children. The
two met in a fairly populated area and then went through some
winding streets and ended up in an area with no people around
There was a ‘‘verbal altercation.’’ The next thing Mansfield
remembered was seeing a man lying on the ground with a knife
in him

During their opening statement at Mansfield’s second trial,
the defense acknowledged that ‘‘although [the appellant] may
have been the physical agent of the death of Mr. Yang, there is a
serious doubt whether he was responsible [for] that death ’’ The
defense stressed that when Mansfield was in the alley with
Yang, he was ‘‘a man who lacked the ability to conform his
conduct to the requirements of the law.’”’

To assist the court members tn understanding what caused
the appellant to act the way he did on 3 February 1984, the trial
defense counsel offered extensive expert testimony from an
array of highly qualified witnesses: Doctor John Beck, a psy-
chiatrist with over 23 years experience, Doctor Robert Vosburg,
a former Air Force Psychiatrist, now in private practice, who
was a member of the sanity board that examined Mansfield in

33a

1984: Doctor John Streffling, Chief of Psychiatry at the United
States Disciplinary Barracks: and Doctor Michael Coburn, a
forensic psychiatrist. While their views regarding specific diag-
noses differed, they shared a common view on the forces that
made the appellant behave as he did. They all agreed that while
Mansfield could appreciate the criminality of his conduct, he
lacked the substantial capacity to conform his conduct to the
requirements of the law at the time of the offense

Doctor Beck concluded that the appellant suffered from a
Post-Traumatic Stress Disorder (PTSD), and Adjustment Dis-
order with Mixed Disturbance of Mood and Conduct. and a
Mixed Personality Disorder which amounted to a mental dis-
ease or defect. Beck opined that in the 4 to 8 weeks before
Yang’s death, Mansfield was ‘in an altered state of personality
function and personal desperation.’’ The car accident of 3
September 1983 was the triggering event, and was a dual
trauma: 1) injury to a loved one and 2) rejection of him by her in
favor of her husband. The appellant ‘‘idealized’’ his relationship
with Un-Cha. He saw her as the ‘‘personification’’ of sweetness
and love. He rationalized that if he could get the children back,
they could be used as Pawns to get Un-Cha to leave her hus-
band Dr. Beck acknowledged that his diagnosis of the appellant’s
mental condition does not meet the American Psychiatric
Association’s (APA) definition of a severe mental disease or
defect, but thinks their Standard is too narrow and inflexible. In
his view a severe mertal disease or defect should not be limited
to psychoses because other behavior disorders can be just as
severe as any behavior compelled by a psychosis

Doctor Vosburg first saw the appellant in May and June
1984. He was not sure why there had been a psychiatric referral
as the appellant was ‘‘not flamboyantly psychotic’ and ‘‘not
grossly disturbed.’’ At that time Vosburg found Mansfield ori-
ented to time, place, circumstance, and in contact with reality
Later, he concluded that the appellant suffered from a PTSD

34a

behavioral problem. The stressors included the car accident,
problems at work, survival guilt as a result of the accident, and
memory impairment. The accident triggered a ‘‘traumatic neu-
rosis.’” The appellant’s PTSD was described as mild to moder-
ate and he was not psychotic. While he was deeply attracted to
Un-Cha and looked upon her as a “‘mother surrogate,”’ he was
not obsessed with her in a clinical sense. See American Psychi-
atric Institute, Diagnostic and Statistical Manual for Mental
Disorders (DSM) (3d Ed. 1980.) Dr. Vosburg agreed that a
PTSD is not service-disqualifying, and that car accidents do not
always result in PTSD

Doctor Streffling has conducted over 6,000 mental examina-
tions. He first saw the appellant in March 1985, when the latter
had trouble sleeping and had contemplated suicide. After
Streffling conducted two clinical evaluations and reviewed the
prior mental health records, he diagnosed the appellant's mental
condition as Alcohol Abuse in Remission, and a Mixed Person-
ality Disorder with Paranoid, Schizoid, Schizotypal, Depen-
dency and Obsessive Traits—he ruled out PTSD. He consid-
ered malingering as a possibility, but adhered to his opinion that
the appellant lacked the substantial capacity to conform his
conduct to the requirements of the law at the time of the
ottense

Doctor Coburn interviewed the appellant four times— the last
being in July, 1987. He found the appellant to be a ‘‘very sick’’
person whom he diagnozed as suffering from PTSD with a
Mixed Personality Disorder manifested by Paranoid, Schizoid,
Narcissistic, Avoidant, Dependent, and Obsessive-Compulsive
traits. The car wreck that resulted in Un-Cha’s injury and the
earlier death of the appellant's mother were stressors that trig-
gered the impairment which Coburn described as “‘very, very
serious.’’ Coburn acknowledged that the appellant did not have
an organic brain disease and was not psychotic, but maintained

that his mental condition was a disease or defect which pre-

35a

vented him from conforming his actions to the requirements of
the law. Dr. Coburn also thought the APA standard on what
amounted to a mental disease or defect was too restrictive. He
felt that the impairment should not have to be a psychosis, but
merely a serious disorder. The appellant’s stressors ‘‘snow-
balled’’ and, after the accident, he lost interest in everything and
everyone but Un-Cha

In preparation for his first trial, Mansfield wrote a lengthy and
detailed account of his relationship with Un-Cha, the events that
led up to the meeting with Yang, and what happened at that
meeting. The parties at the second trial referred to this state-
ment as ;the appellant’s ‘‘life story.’’ The statement told of
Mansfield’s attempt to hire a ‘‘hit man’’ to kill Yang, his
purchase of a knife shortly before the homicide and the manner
of its use at the scene. Both the defense and prosecution used
the statement during the direct and cross-examination of the
defense’s expert witnesses, all of whom had read the statement
and with the exception of Dr. Vosburg had considered it in
arriving at a diagnosis

The statement itself was a very difficult document for a
psychiatrist to assess as it was a ‘‘combination of fact and
fiction.’” Doctor Beck opined that even if the appellant had the
knife in his hand when he met Yang, he lacked the ability to
control himself. Doctor Vosburg’s diagnosis of the appellant’s
mental state was not changed by his reading of the ‘‘life story.”’
Likewise, Doctor Streffling’s diagnosis remained the same after
he read the statement. Doctor Coburn stated he was aware of
the “hit man’’ theory the first day he met the appellant. He
indicated further that the appellant had told him two versions of
the events in Korea, but neither was complete or believable
Nothing in the “‘life story’’ changed his assessment of the
appellant’s mental makeup

In his “‘life story’’ the appellant related that he attempted to
negotiate the return of Un-Cha’s children from Yang by offering

36a

him a substantial sum of money. Initially, this offer was consid-
ered by Yang, but he changed his mind and started berating Un-
Cha. The appellant and Yang argued, a scuffle followed, and the
appellant took a knife from a plastic bag which Yang pulled
from his hand. According to the appellant was happened next is
unclear, but when he saw Yang on the ground, he attempted to
remove any incriminating evidence from the scene and left.

The defense sought to show Yang as a violent person, skilled
in martial arts, who had assaulted a former boyfriend of Un-
Cha’s with a knife. A professor of Korean Traditional Culture at
the Seoul National University testified that offering money for a
man’s children is a ‘“‘shameful thing,’’ and would anger a Ko-
rean father. The defense suggested that when Mansfield offered
to “‘buy’’ Un-Cha’s children from Yang this so angered him that
he attacked Mansfield who then was forced to defend himself
An instruction on self-defense was given the members priot to
findings

In rebuttal to the testimony just discussed the prosecution
responded with three equally distinguished and qualified expert
witnesses: Doctor Philip Resnick, a forensic psychiatrist who
teaches courses on the detection of deception and faked mental
illness; Major (Dr) Paul Sorgi, staff psychiatrist, and Director,
Psychiatric Residency Training, Wright-Patterson Air Force
Base, Ohio, and Colonel (Dr) Ali Baser, Chairman, Department
of Psychiatry, Wiesbaden Regional Medical Center, Wiesbaden,
Germany. Doctor Baser has 30 years experience as a psychia-
trist

All three psychiatrists who appeared for the prosecution
testified that the appellant did not have PTSD, but at the very
most a Mixed Personality Disorder which did not prevent him
from conforming his conduct to the requirements of the law
None of these psychiatrists observed any evidence of a major
mental illness, e.g., schizophrenia or manic-depressive state, or
any indication of a psychosis. All three, using the American Law

37a

Institute standard, found the appellant fully responsible for his
actions.

Doctor Resnick cited various bases for concluding that the
appellant had the capacity to conform his conduct to the re-
quirements of the law and to refrain from stabbing Yang. For
example, the appellant did not suffer from command hallucina-
tions and there was no evidence that a delusion, delirium,
psychosis or misperception of reality caused the act. Doctor
Resnick observed that the appellant ‘‘did not act with an uncon-
trollable urge’’ and stab Yang in front of the coffee shop where
he first met him, but waited until the two were in an isolated
area and after Yang had refused to release Un-Cha’s children in
return for money. The appellant was only “driven” to kill Yang
in order to please Un-Cha by getting her children back. In his
opinion, the appellant was not an ‘‘out of control, quivering
person welling up with hate,’’ but a person who could control
his actions until a time when he is less likely to be caught
Doctor Resnick acknowledged that Mansfield had an intense
love for Un-Cha and spent substantial sums to win her affection,
but stated that “‘being in love is not a mental disease.”’

Doctor Sorgi was a member of the sanity board that inter-
viewed Mansfield in August 1987. At that time the appellant's
behavior was appropriate, speech was in normal limits, and he
possessed an above average I.Q. After reviewing the appellant's
medical and prior mental evaluations, Doctor Sorgi found no
evdience of a mental disease or defect. He concluded that the
appellant had a mixed personality disorder, and had the capacity
to conform his conduct to the requirements of the law. The basis
for this conclusion was much the same as Doctor Resnick’s in
that Sorgi saw no hallucinations or delusions and no indication
of a psychosis

In September 1984, Doctor Baser was a member of a sanity
board that evaluated the appellant. The board’s conclusion
indicated a mild to moderate Personality Disorder. There was

38a

no evidence of PTSD. Doctor Baser pointed out that PTSD
usually results in an impairment of the sexual drive, but Mansfield,
in his “‘life story,’’ stated he was sexually active in Korea, and
had a “‘great time.”’ Further, those suffering from PTSD avoid
discussions of their traumatic events, however, here the appel-
lant wanted to talk about the accident all the time. In Doctor
Baser’s opinion, Mansfield had the capacity to conform his
conduct to the requirements of the law

The prosecution also offered lay testimony that Mansfield
appeared ‘‘normal, rational, and coherent’’ in his behavior up
until his arrest. His mental stability was not questioned. Further,
in June 1984, Mansfield told a cellmate he wanted to convince a
psychiatrist he was ‘‘crazy.’’ To this end he started acting
‘“strange in the latrine’’ by staring at the walls. After the guard
was called, Mansfield looked at his cellmate and “‘winked.”’

In closing its rebuttal case, the prosecution offered evidence
that Yang was a peaceful, educated person who was not known
to carry a knife

INEFFECTIVE ASSISTANCE OF COUNSEL

The initial issue we address is one of first impression within
the military justice system: Was the appellant denied his Sixth
Amendment right to effective representation of counsel in his
second trial because of a taint emanating from this Court’s
reversal of the results of his first trial? Mansfield, 24 M.J. 611
(A.F.C_.M.R. 1987) (Mansfield 1)

The main thrust of appellant’s argument is that the prosecu-
tion, at his second trial, had access to, and probably used,
privileged attorney-client information he was forced to disclose
to support the claim of ineffective assistance of counsel at his
first trial

In the appeal following the first trial, the appellant claimed
that his trial attorneys had failed to investigate, prepare, or
properly present either an insanity or diminished capacity de-

39a

fense. Later, his appellate counsel expanded the issue of ineffec-
tive assistance of counsel by suggesting that the trial defense
counsel in Mansfield / acted improperly and against the
appellant's best interests by instructing him to withhold material
information from Doctor Coburn, a potential defense insanity
defense witness. Both the government and the appellant asked
for a limited evidentiary hearing to investigate the claim of
ineffective representation. See generally United States v. DuBay,
17 U.S.C.M.A. 147,37 C.M.R. 411 (1967). We ordered such a
hearing. Our earlier decision in Mansfield J] discussed the evi-
dence supporting the appellant’s allegation of inadequate repre-
sentation

A military accused is entitled to effective assistance of coun-
sel. This is true whether the counsel is detailed or selected by the
accused. United States v. Scott, 24 MJ. 186 (C.M.A. 1987):
Bates v. Blackburn, 805 F.2d 569 (Sth Cir. 1986). Further.
where an accused is denied effective representation, he or she is
entitled to a new trial. This is the rule in both military and
civilian jurisdictions. (/nited States v. Scott, supra; United States
v. Mansfield, supra; United States v. Cronic, 839 F.2d 1401
(10th Cir. 1988): Martin v. Rose, 744 F.2d 1245 (6th Cir
1984), Morrison v. Kimmelman, 650 F.Supp. 801 (D.C.N.J
1986). State v. kelton, 110 Wis.2d 485, 329 N.W.2d 161
(1983)

he appellant, however, seeks dismissal of the charges as his
remedy. Citing Kastigar v. United States, 406 U.S. 441, 92
S.Ct. 1653, 32 L.Ed.2d 212 (1972), he argues that he was
‘“compelled’’ to waive the attorney-client privilege in order to
establish grounds of ineffective assistance of counsel. Thus, he
is entitled to a ‘‘Kastigar-like’’ remedy where in the prosecu-
tion has the affirmative duty to prove that the evidence it wishes
to use at the second trial was derived from a legitimate source
wholly independent of the ‘‘compelled’’ testimony relating to
his claim of inadequate representation. He contends, without

40a
this protection, “ [a] retrial becomes nothing more than a
forum whereby the government perfects its case at the expense
of the appellant’s Sixth Amendment right to effective assistance
of counsel.’’ This assertion misses the mark. While the appellant’s
self-interest may ‘‘compel’’ him to claim that his lawyer was
inept, this “‘compulsion’’ does not allow him to re-claim his
attorney-client privilege. An attack on an attorney’s compe-
tence waives the attorney-client privilege as to matters reason-
ably related to the claim of inadequate representation. United
States v. Johnson, 21 M.J. 211 (C.M.A. 1986); United States v.
('audill, 18 M.J. 514 (A.F.C.M.R. 1984); see also Mil.R.Evid
$02(aj{3)

Appellant’s counsel maintain that ‘‘[t]he unique circumstances
of this case have conspired to produce a situation wherein he
can never receive a fair trial.’’ They postulate that the appellant
can never be restored to the position he occupied before the
ineffective representation. They argue that the evidentiary hear-
ing which provided the basis for granting a new trial gave the
prosecution unfair access to facts and potential defenses that the
appellant might raise at the hearing. Accordingly, they urge that
dismissal of the murder conviction is the only just remedy.

To arrive at this conclusion, appellate counsel treat the
appellant’s situation as a two-act play where the scenes in the
first act are so important that the play can never be revised to
arrive at a different ending before the final curtain. We, on the
other hand, view the circumstances as two one-act dramas that,
while tangentially connected, need not reach the same conclu-
sion

Stated briefly, it is the appellant’s position that his lawyers in
the first trial so botched his defense that his lawyers in the
second trial were prevented from adequately defending him. In
their view the two trials are linked, and the trial tactics in the
first which resulted in a rehearing had a prejudicial impact on the
second.

sore:

4ia

For example, the appellant claims he was precluded from
testifyin the second trial because of the ‘‘Life Story’ his lawyers
on his first trial had him prepare and give to potential defense
psychiatric witnesses. Few decisions made during the course of
a litigated trial are risk-free. Whether an accused takes the stand
in a trial is a tactical decision where the danger of doing so is
weighted against the benefit. Mansfield’s decision whether to
testify may not have been easy, but the choice was there See
State v. Lucas, 164 Ariz. 540, 794 P.2d 1353 (App. 1990). The
appellant did not take the stand at the rehearing. However, there
could be any number of appropriate reasons, not related to the
first trial, as to why the appellant did not testify We need not
speculate about them. (nited States v. Hurt, 9 US.C.M.A. 735.
27C MR. 3 (1958); See United States v. Small. 48 CMR. 170
(A.F.C_M.R. 1974)

Appellant's counsel also argue that the delay between the
first and second trial prevented the appellant from obtaining
additional psychiatric testimony. The record does not support
this assertion. In addition to the psychiatrists who were poten-
tial defense witnesses at the first trial, the defense called expert
witnesses who based their testimony solely on examinations of
the appellant conducted subsequent to the first trial. There is no
showing that passage of time between the two trials blotted out
a substantial defense. Accord People v. Corona, 80 Cal. App 3d
684, 145 Cal Rptr. 894 (1978) (New trial ordered after a 7 year
lapse because an insanity defense was available, but not raised
Accused initially convicted of killing 25 migratory workers )

Any rehearing can limit trial tactics. For example, an accused
would be hard pressed to claim alibi in a second trial having
relied on self-defense in the first. Likewise, any retrial permits
the prosecution some insight into the likely strategy the accused
will follow. There are several situations where an a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1701%3A1. Public record. Not legal advice.