Petition for Writ of Certiorari — Godshalk v. United States

Supreme Court brief1996

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No. -gpeics OF iHE CLERK

In THE

Suprene Court of the United States

OCTOBER TERM, 1996

STAFF SERGEANT MICHAEL J. GODSHALK,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

ORMOND R. FODREA

Major, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

October 1996 202-767-1562

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QUESTION PRESENTED

Whether appellant’s pleas of guilty were induced or he

suffered any other prejudice as a result of his government

provided defense counsel acting as a police agent in order

to effect his apprehension, thus violating his Fifth Amend-

ment right to due process and Sixth Amendment right to

counsel.

(i)

IN THE

Supreme Court of the Tnited States

OCTOBER TERM, 1996

No.

STAFF SERGEANT MICHAEL J. GODSHALK,

Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Staff Sergeant Michael J. Godshalk, re-

spectfully prays that a writ of certiorari issue to review

the order and judgment of the United States Court of

Appeals for the Armed Forces entered in his case on 18

September 1996.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at M.J.

(1996), is located at Appendix A. The unpub-

lished opinion of the United States Air Force Court of

Criminal Appeals is located at Appendix B.

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on 18 September 1996.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1259(3) (West Supp. 1995) and 10 U.S.C. Sec.

867(a) (West Supp. 1994).

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment

No person shall . . . be deprived of life, liberty or

property, without due process of law.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for

his defense.

STATEMENT OF THE CASE

While stationed in Korea, the petitioner, an active duty

member of the Air Force, despondent over discovery of

the adulterous relationship of his wife, misappropriated

a government vehicle and weapon, abducted his wife’s

paramour at gun point and took him for a ride eventually

letting him go unharmed. The petitioner then went into

hiding for several days only to emerge to call his duty

station, Osan Air Base, Korea, and talk with several

individuals there.

The petitioner spoke to a Chaplain, members of his

unit, and also sought representation of counsel by calling

the Area Defense Counsel—the military attorney stationed

at the installation authorized to represent military mem-

bers pending adverse criminal or administrative proceed-

ings, such as trial by court-martial. He spoke to Captain

Carmen Battle, the only attorney at Osan Air Base desig-

nated as a defense counsel. He asked her to represent him

and she agreed. She promised that their conversations

were confidential and that she would represent him and

his interests alone.

Captain Battle and the petitioner had numerous con-

versations over a severai day period. Captain Battle also

spoke to the Chaplain and others to learn about the peti-

tioner’s situation. She learned that the petitioner had

spoken of suicide and made threats to kill himself. She

soon spoke with military police officials (Office of Special

Investigations) and agreed to act as their agent in an

effort to lure the petitioner into apprehension. Thus she

was acting in this capacity as a police agent when she

promised the petitioner she had arranged mental health

treatment and that he would not serve more than a year in

confinement for his offenses if he surrendered voluntarily.

Based upon her assurances that she was acting in his

interests, the petitioner surrendered—only to be informed

by Captain Battle that she had, in fact, been acting as a

police agent and did not represent him. She told him that

she had not arranged a deal in return for his surrender

as she had promised and that, in fact, she would likely

be a witness against him if he pled not guilty at his court-

martial. As a result, t trial, the petitioner plead guilty

to wrongful appropriation of government property (3

specifications), assault with a dangerous weapon, and

kidnapping; 10 U.S.C. §§ 921, 928 and 934. He was sen-

tenced to a punitive discharge, five years confinement,

partial forfeitures of pay and allowances, and reduction

to the lowest enlisted rank.

REASONS FOR GRANTING THE WRIT

APPELLANT'S PLEAS OF GUILTY WERE INDUCED

AND HE SUFFERED OTHER PREJUDICE AS A RE-

SULT OF HIS GOVERNMENT PROVIDED DEFENSE

COUNSEL ACTING AS A POLICE AGENT AND THEN

EFFECTING HIS APPREHENSION, THUS VIOLAT-

ING HIS FIFTH AMENDMENT RIGHT TO DUE

PROCESS AND SIXTH AMENDMENT RIGHT TO

COUNSEL

An accused has Constitutionally guaranteed tights,

founded in the Fifth Amendment’s right to Due Process

and the Sixth Amendment’s right to assistance of counsel,

to a defense counsel not only free of conflicts of interest

but to that attorney’s undivided loyalty. See Wood v.

Georgia, 450 U.S. 262, 272 (1981). A counsel may

not assist in the prosecution of an individual whom he

represents or has represented in the same or related matter

at any time. It makes no difference that the attorney-

client relationship is later terminated. United States v.

Green, 5 U.S.C.M.A. 610, 613-615, 18 C.M.R. 234,

237-239 (1955). When an attorney subsequently takes a

position contrary to his client’s or former client’s interest,

it is immaterial that the attorney did not divulge con-

fidential communications from his client or former client.

United States v. Green, 5 U.S.C.M.A. 610, 18 C.M.R.

234 (1955). “The right to have the assistance of counsel

is too fundamental and absolute to allow courts to indulge

in nice calculations as to the amount of prejudice arising

from its denial.” Glasser v. United States, 315 U.S. 60,

76 (1942) (citations omitted).

At the petitioner’s trial, it was uncontested that Captain

Battle, the military attorney designated by miliary au-

thorities as defense counsel for the installation, established

an attorney-client relationship with the petitioner but sub-

sequently agreed to work as a police agent in order to

effect petitioner’s apprehension. While working as a gov-

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ernment agent but still feigning to act as petitioner's

counsel, Captain Battle discussed his case with him while

police agents were monitoring the conversations, made

promises to the petitioner that she had negotiated terms

for him if he surrendered voluntarily, when she had not,

and then convinced him to do so. When the petitioner

surrendered, she informed him that she was no longer his

counsel, that she had been, in fact, acting as a police agent

since shortly after the establishment of their attorney-client

relationship, that her promised arrangements with the

government were false, and that, in fact, if he litigated the

issue of his innocence, she would likely be called as a

witness against him. Not surprisingly, the petitioner felt

he had no choice but to plead guilty.

CONCLUSION

This clearly was a violation of the petitioner’s Fifth

and Sixth Amendment rights to conflict free counsel and

had an impermissible chilling effect upon an accused

right to plead not guilty. Any such conviction based upon

a guilty plea given these circumstances can not be allowed

to stand.

Respectfully submitted,