IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Billy E. CAIN, Sergeant 

U.S. Army, Appellant 

No. 03-0212 

Crim. App. No. 9800797 

United States Court of Appeals for the Armed Forces 

Argued October 22, 2003 

Decided March 19, 2004 

EFFRON, J., delivered the opinion of the Court, in which 

GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed 

a dissenting opinion. 

Counsel

For Appellant: Captain Rob W. MacDonald (argued); Colonel 

Robert Teetsel, Lieutenant Colonel Mark Tellitocci, and 

Major Allyson G. Lambert (on brief); Lieutenant Colonel E. 

Allen Chandler, Jr., Major Imogene M. Jamison, and Captain 

Mary E. Card. 

 

For Appellee: Captain Edward E. Wiggers (argued); Colonel 

Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and 

Major Natalie A. Kolb (on brief). 

 

Military Judge: J. J. Smith 

 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Cain, No. 03-0212/AR 

2

Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of a military judge 

sitting alone, Appellant was convicted, pursuant to his pleas, 

of indecent assault (two specifications), in violation of 

Article 134, Uniform Code of Military Justice [hereinafter 

UCMJ], 10 U.S.C. § 934 (2000). He was sentenced to a 

dishonorable discharge, confinement for five years, forfeiture 

of all pay and allowances, and reduction to Private E-1. 

Pursuant to a pretrial agreement, the convening authority 

approved a sentence providing for a dishonorable discharge, 24 

months’ confinement, forfeiture of all pay and allowances, and 

reduction to Private E-1. The Court of Criminal Appeals 

affirmed. United States v. Cain, 57 M.J. 733 (A. Ct. Crim. App. 

2002). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER APPELLANT WAS DENIED THE FUNDAMENTAL 

RIGHT TO CONFLICT FREE AND EFFECTIVE 

ASSISTANCE OF COUNSEL WHEN THE LEAD DEFENSE 

COUNSEL AND APPELLANT ENGAGED IN A SECRETIVE 

HOMOSEXUAL RELATIONSHIP. 

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS 

ERRED WHEN IT DETERMINED THAT APPELLANT’S 

SEXUAL RELATIONSHIP WITH HIS LEAD DEFENSE 

COUNSEL DID NOT CREATE A CONFLICT OF INTEREST 

DENYING APPELLANT EFFECTIVE ASSISTANCE OF 

COUNSEL. 
United States v. Cain, No. 03-0212/AR 

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For the reasons set forth below, we conclude that Appellant 

did not receive effective assistance of counsel and reverse. 

I. BACKGROUND 

A. COURT-MARTIAL PROCEEDINGS 

1. Assignment of defense counsel to represent Appellant

In October 1997, Appellant was charged with three 

specifications of forcible sodomy under Article 125, UCMJ, 10 

U.S.C. § 925 (2000). The charges alleged that the offenses 

occurred between 1993 and 1995. 

At the time of the first charged offense, Appellant was 

assigned to the Reserve Officer Training Corps (ROTC) Department 

at Norwich University in Vermont. The alleged victim was a male 

non-ROTC student at Norwich University. At the time of the 

second and third charged offenses, Appellant was serving at ROTC 

1st Brigade Headquarters at Fort Devens, Massachusetts. The 

alleged victims were male civilians unconnected with Norwich 

University or the Army. 

The military justice chain of command over Appellant 

included his brigade commander at Fort Devens, the summary 

court-martial convening authority; the Commander of the 1st 

Region (ROTC) at Fort Bragg, North Carolina, the special courtmartial convening authority; and the Commander of the XVIII 

Airborne Corps at Fort Bragg, the general court-martial 

convening authority. 
United States v. Cain, No. 03-0212/AR 

4

Civilian authorities began an investigation into similar 

charges in 1995. The brigade commander at Fort Devens, who 

informed his superiors at Fort Bragg of these matters, decided 

to let civilian authorities take the lead. The civilian 

authorities dismissed the charges in the spring of 1996, and the 

Army permitted Appellant to reenlist shortly thereafter. 

Subsequent to Appellant’s reenlistment, a new brigade 

commander was assigned to Fort Devens. The ensuing year was 

marked by growing tension between Appellant and the command, 

exacerbated by Appellant’s allegations that the brigade 

commander and his executive officer were involved in sexual 

improprieties. 

After Appellant submitted his allegations against the 

commander and executive officer, military authorities decided to 

reopen the investigation into the charges against Appellant that 

had been dismissed by civilian authorities. In the meantime, 

the brigade commander was relieved, but the renewed 

investigation into Appellant’s activities continued apace. 

Charges were preferred against Appellant on October 15, 1997, 

and forwarded to the special court-martial convening authority 

at Fort Bragg. 

The special court-martial convening authority appointed an 

investigating officer under Article 32, UCMJ, 10 U.S.C. § 832 

(2000), to look into the allegations. The Article 32 hearing 
United States v. Cain, No. 03-0212/AR 

5

was conducted at Fort Devens. Because Fort Devens did not have 

a trial defense office, the responsibility for detailing counsel 

to represent Appellant at the Article 32 hearing was exercised 

by Major S, the senior defense counsel at Fort Bragg. Major S 

assigned himself to represent Appellant during the Article 32 

proceedings. The Article 32 proceedings and subsequent review 

by the chain of command resulted in referral of the charges on 

December 18, 1997, for trial by a general court-martial. 

In January 1998, Appellant was assigned temporarily to Fort 

Bragg for the duration of the trial. During pretrial sessions 

in January, Appellant agreed to be represented at trial by Major 

S, adding that he was pursuing the possibility of representation 

by civilian counsel. He expressed concern with the large 

caseload facing defense counsel at Fort Bragg and the impact 

that it might have on his representation. He requested 

assignment of an additional counsel to assist Major S, noting 

that the prosecution already had two attorneys assigned to the 

case. In February, Major S detailed Captain L as assistant 

defense counsel and informed the military judge that Appellant 

would not be represented by civilian defense counsel. Appellant 

confirmed these arrangements on the record. 

2. Pretrial motions

In February and March, the defense filed two motions to 

dismiss the case on procedural grounds. The first challenged 
United States v. Cain, No. 03-0212/AR 

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the delay in bringing the case to trial. See U.S. Const. amend. 

V (due process) and Rule for Courts-Martial 907 [hereinafter 

R.C.M.] (speedy trial). The military judge denied the motion. 

The defense filed a petition for extraordinary relief in the 

United States Army Court of Criminal Appeals on the same 

grounds, which was denied without prejudice to consideration of 

the matter during further proceedings. 

 The second motion alleged selective prosecution in 

violation of Appellant’s due process and equal protection 

rights. See U.S. Const. amend. V. The motion noted that 

civilian authorities had dismissed the underlying charges 

against Appellant; that military officials knew of the charges 

when Appellant was permitted to reenlist in April 1996; that the 

charges were resurrected because the command believed that 

Appellant was homosexual; and that the charges were filed in 

retaliation for Appellant’s “whistleblower” complaint against 

the command. The military judge denied the motion. 

3. The plea agreement

In mid-May, the defense entered into negotiations with the 

Government, which resulted in a pretrial agreement. Appellant 

agreed to plead guilty to two specifications of indecent assault 

in lieu of two of the forcible sodomy specifications. The 

convening authority agreed to direct the trial counsel to 

dismiss the remaining forcible sodomy specification and to 
United States v. Cain, No. 03-0212/AR 

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disapprove any sentence greater than a dishonorable discharge, 

24 months’ confinement, forfeiture of all pay and allowances, 

and reduction to Private E-1. 

At a court-martial session on June 2, Appellant entered 

pleas consistent with the pretrial agreement. The military 

judge conducted a detailed inquiry into the providence of 

Appellant’s pleas. After concluding that the pleas were 

provident, the military judge entered findings consistent with 

those pleas, and sentenced him to a dishonorable discharge, 

confinement for five years, forfeiture of all pay and 

allowances, and reduction to Private E-1. 

B. POST-TRIAL DEVELOPMENTS 

1. Defense counsel's suicide 

 Two weeks after trial, a senior officer in the Army Trial 

Defense Service (TDS) visited Fort Bragg to investigate a 

professional conduct complaint that had been lodged against 

Major S. The complaint involved a matter distinct from his 

representation of Appellant. Major S, who was on leave in 

Chicago with his wife and son in preparation for an expected 

reassignment to Germany, returned to Fort Bragg alone to address 

the allegations. His reassignment had been tentatively placed 

on hold pending the results of the investigation. 
United States v. Cain, No. 03-0212/AR 

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Prior to meeting with Major S, the senior TDS officer 

visited the Staff Judge Advocate (SJA) of the XVIII Airborne 

Corps. The SJA showed the senior TDS officer a letter that had 

been sent to the convening authority by Appellant's parents. 

The letter, dated four days after the conclusion of trial, 

alleged that Major S had pressured the Appellant for sexual 

favors. 

During a June 18 meeting with the senior TDS officer, Major 

S asked if there were potential delays that might affect his 

reassignment. In response, the senior TDS officer informed 

Major S of the allegations made by Appellant’s parents. Major 

S, who was upset, denied the allegations. He expressed concern 

that a long delay could cause the cancellation of his 

reassignment to Germany, but he appeared to be resigned to the 

fact that the matter could not be resolved on the spot by the 

senior TDS officer. 

Early the next morning, Major S took his own life. In a 

package of materials prepared for his personal attorney, Major S 

left a tape recording made shortly before his death. Although 

the recording did not provide detailed information about his 

relationship with Appellant or his conduct as lead defense 

counsel, it contained the following statements: 

I fully deny that I ever forcibly had sex 

with [Appellant] . . . . 
United States v. Cain, No. 03-0212/AR 

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. . . . 

My suicide is not an admission of guilt . . . . 

. . . . 

I want you to know that my death is not an 

admission of any of the charges against me . . . 

. . . . 

Concerning [Appellant’s] parents' 

allegation, that I forced their son to have 

sex with me, the allegation is 

preposterous . . . . 

2. Assignment of a new defense counsel and the request for a 

post-trial inquiry

 

 In July, the assistant defense counsel, Captain L, 

determined that he should disqualify himself from further 

representation of Appellant so that counsel not connected with 

Fort Bragg could represent Appellant during post-trial 

proceedings. On July 23, Captain H was detailed as Appellant’s 

new defense counsel. On July 29, Captain L, although no longer 

representing the Appellant, signed the record of trial, which 

was authenticated on the same day by the military judge. 

On July 30, the acting SJA prepared the post-trial 

recommendation to the convening authority required by R.C.M. 

1106. The recommendation proposed approval of the adjudged 

sentence as modified by the pretrial agreement. The 

recommendation did not discuss the allegations made by 

Appellant’s parents, the suicide of Major S, or any other 
United States v. Cain, No. 03-0212/AR 

10

intervening events. Pursuant to R.C.M. 1106(f), the 

recommendation was served on Appellant and Captain H. The 

defense then requested, and was granted, an extension of time to 

file post-trial matters. 

On September 11, 1998, Captain H submitted a discovery 

request for information concerning the representation of 

Appellant by Major S and his subsequent suicide. In the 

alternative, defense counsel requested an in camera inspection 

of evidence pertaining to that information by the military 

judge. The request was denied on September 16 on the grounds 

that Appellant was not entitled to post-trial discovery and that 

the military judge’s authority to act on the case ended upon 

authentication of the record of trial. 

Defense counsel filed another request on September 28, 

asking the convening authority to refer the matter to the 

military judge for a post-trial session under Article 39(a), 

UCMJ, 10 U.S.C. § 839(a)(2000). See R.C.M. 1102(d). The 

defense asserted that an inquiry by the military judge on the 

record was necessary to determine whether Appellant had been 

denied his right to effective assistance of counsel in light of 

alleged improper activities by Major S. In an analysis prepared 

for the convening authority, the SJA noted that the defense team 

had secured a favorable outcome for Appellant, that the asserted 

improper relationship had not created an actual conflict of 
United States v. Cain, No. 03-0212/AR 

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interest, and that a post-trial hearing would not serve any 

useful purpose in the absence of specific allegations by the 

defense of ineffective representation. In accordance with his 

SJA’s recommendation, the convening authority rejected the 

request for further proceedings before the military judge on 

November 2. 

On December 8, the defense submitted a post-trial memorandum 

under R.C.M. 1105 and 1106(f) for consideration by the convening 

authority. The memorandum emphasized the defense's continuing 

objection to the Government's refusal to release information 

regarding the events surrounding Major S's suicide. In 

addition, the defense contended that Appellant had not received 

effective assistance of counsel and that the deficiencies in 

representation rendered his guilty pleas improvident. The 

defense asked the convening authority to order a new trial. In 

addition, the defense proposed three alternative remedies: (1) 

issuance of an administrative discharge of Appellant in lieu of 

approval of the court-martial proceedings; (2) referral of the 

matter for review by the military judge in a post-trial session 

under Article 39(a); or (3) clemency through a reduction in 

sentence to time served, emphasizing a post-trial diagnosis of 

Appellant as HIV-positive. 

The SJA advised the convening authority that the allegations 

of legal error were without merit and that the case did not 
United States v. Cain, No. 03-0212/AR 

12

warrant either corrective action or clemency. On December 11, 

the convening authority adopted the SJA’s recommendations and 

approved the sentence as modified by the pretrial agreement. 

3. The order for an evidentiary hearing

Over the next two years, Appellant continued to challenge 

the representation he had received at trial. On October 26, 

2000, the Army Court of Criminal Appeals ordered an evidentiary 

hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 

C.M.R. 411 (1967). The DuBay hearing was held on May 14, 2001. 

The following section summarizes information from the DuBay

proceedings and from the record of trial concerning the 

relationship between Major S and Appellant. 

C. THE PERSONAL AND PROFESSIONAL RELATIONSHIP 

BETWEEN MAJOR S AND APPELLANT 

1. The sexual relationship

Before he assigned himself to represent Appellant, Major S 

was aware of Appellant’s homosexuality. According to Appellant, 

Major S had assisted him on another matter six years earlier. 

The assistant defense counsel at trial, Captain L, testified at 

the DuBay hearing that it was not unusual for Major S to involve 

himself in a case of this type because Major S was very 

interested in cases involving sexual misconduct or sex of any 

kind. 
United States v. Cain, No. 03-0212/AR 

13

Major S initiated a sexual relationship with Appellant at 

the very outset of their attorney-client relationship in the 

present case. In the fall of 1998, Appellant traveled to Fort 

Bragg for their initial meeting. On the evening that Appellant 

arrived at Fort Bragg, Major S made sexual advances, which 

Appellant regarded as unwelcome and inappropriate. In December, 

when Major S came to Fort Devens for Appellant’s Article 32 

hearing, he made further sexual advances, which led to acts of 

oral and anal sodomy between Major S and Appellant. 

Subsequent to referral of charges for trial by general 

court-martial, Appellant learned that he was being transferred 

temporarily to Fort Bragg in January 1998 at the behest of Major 

S. While at Fort Bragg, Appellant worked as an enlisted clerktypist at the TDS office under the supervision of Major S. He 

worked on the cases of other service members, as well as on his 

own, and also provided assistance to the ROTC program office. 

In addition to his official duties, Appellant performed 

errands for Major S and frequently drove him to and from his 

home. On more than one occasion, they engaged in sexual 

activity during these drives. Another sexual encounter occurred 

in the TDS office. Although the military judge presiding at the 

DuBay hearing expressed skepticism as to some of Appellant’s 

testimony, he nonetheless concluded that Major S engaged in six 
United States v. Cain, No. 03-0212/AR 

14

or seven acts of sodomy with Appellant during the period in 

which he served as counsel in the present case. 

Major S did not manifest his homosexual activity to his 

colleagues. At the DuBay hearing, the judge advocate who served 

as trial counsel at Appellant’s court-martial characterized 

Major S as “one of the last people I would think” was a 

homosexual. The assistant trial counsel at Appellant’s courtmartial described Major S as “a man’s man” who “during the 

course of plea negotiations, . . . described . . . homosexual 

behavior in a less than favorable light . . . .” The assistant 

trial counsel added that “if you were to have asked that 

question at any point during the course of this, or any other 

case, . . . I probably would’ve laughed you out of the room.” 

2. The professional relationship

The DuBay record and the record of trial reflect various 

statements made by Appellant prior to adjudication of findings 

and sentence in which he expressed satisfaction with Major S as 

his attorney, often speaking in highly complimentary terms. 

When he approached Captain L in January to request his 

assistance with the case, Appellant said that Major S was doing 

a “great job.” Later, Captain L recalled that Appellant had 

stated “that he was very grateful for the work [Major S] and I 

were doing and that he was very happy with us.” When asked by 
United States v. Cain, No. 03-0212/AR 

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the military judge during the providence inquiry whether he was 

satisfied with his attorneys, he responded in the affirmative. 

 The information developed in the DuBay proceeding, however, 

indicates that Appellant had significant misgivings about Major 

S throughout the court-martial process. Early in December 1997, 

Appellant contacted Mr. C, who worked on the staff of an 

organization providing assistance to service members affected by 

military policies related to homosexuality. Because the 

organization did not directly represent persons before courtsmartial, Mr. C referred Appellant to a civilian lawyer, Attorney 

W. Mr. C also contacted Attorney W directly and advised her 

that Appellant appeared to be “distraught about the nature of 

his relationship” with Major S. Mr. C also told Attorney W that 

when he suggested to Appellant that he report his concerns about 

Major S to the appropriate authorities, Appellant “expressed 

great fear of potential consequences should he expose Major 

[S’s] misconduct.” 

Appellant contacted Attorney W per Mr. C’s recommendation. 

Attorney W did not discuss the underlying court-martial charges 

with Appellant, confining the conversation to “the problem in 

his relationship with defense counsel, Major [S].” According to 

Attorney W, Appellant “was extremely tentative in tone, his 

voice quavered, and he rambled. He described himself as 

frightened and depressed.” 
United States v. Cain, No. 03-0212/AR 

16

Appellant told Attorney W that Major S had a reputation as 

“an extremely talented defense attorney.” Appellant “believed 

that no one but Major [S] could help him be exonerated by the 

court.” Appellant added that Major S had told him that he 

“would receive a very long prison sentence if he, Major [S], 

were not his defense counsel.” 

According to Attorney W, Appellant was torn by conflicting 

emotions. On the one hand, the sexual relationship initiated by 

Major S, who was married and had a son, “caused him a great deal 

of distress, anxiety, and fear.” On the other hand, “he was 

fearful of discontinuing the sexual relationship or reporting it 

because of his entrenched belief that he would spend a lengthy 

time in prison without Major [S] as his defense attorney.” 

Attorney W informed Appellant that Major S’s actions were 

“unethical and illegal” and that the sexual contact “was 

potentially criminal under Articles 125 or 134 . . . , whether 

related to sodomy or indecent acts.” She expressed concern 

“that this improper relationship could impair [Major S’s] 

objectivity with regard to his representation” of Appellant. 

Appellant “continued to plead that he believed that he would 

be unable to ‘survive’ this court without the assistance of 

Major [S] and that he would simply find himself with inferior 

counsel were he to report Major [S].” Attorney W attempted to 

convince Appellant that he should seek new counsel, even if he 
United States v. Cain, No. 03-0212/AR 

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did not report the misconduct of Major S to the authorities, but 

Appellant declined this advice. Appellant “reiterat[ed] his 

complete trust and dependence on [Major S’s] legal skills, [and] 

he informed [Attorney W] that he did not believe he could take 

the risk of abandoning his [defense] counsel.” According to 

Attorney W, “[i]t was apparent to me from my own experience as 

counsel and my conversation with him that he was incapable of 

rejecting [Major S’s] professional services or his inappropriate 

advances because of the deep need of [Appellant] to believe his 

defense counsel could ‘save’ him.” 

Subsequent to his contact with Attorney W in December, 

Appellant expressed concern about his representation during the 

initial pretrial sessions of his court-martial. At the first 

pretrial session on January 15 -- well after Major S initiated 

sexual activity with Appellant -- the military judge provided 

Appellant with the standard advice as to his counsel rights, and 

inquired as to who would represent him. Appellant responded: 

I would like to retain Major [S]; but, due 

to the serious[ness] of the charges, I also 

-- I am new to the area, like I said. I 

just -- I just got here basically -- here 

this morning; and, if I had the means -- 

that I’d also like to pursue a civilian 

counsel and have that right to look for that 

civilian counsel. Like I said, I am not 

from here. I am not familiar with the area 

or the legal people who are out there. So, I 

would like to retain, at the time being, 

Major [S], but I want the election to seek 

out legal, civilian counsel. 
United States v. Cain, No. 03-0212/AR 

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He then focused on the fact that the prosecution had assigned 

two judge advocates to the case: 

If -- if -- if the government also has two -

- two prosecutors, I would ask that -- I’ve 

seen the case load, sir. I have some 

concerns that the defense counsel here on -- 

on Bragg -- being short the assigned 

attorneys that they have present -- I would 

-- I do not feel that I would get the full 

benefit of a -- of a government defense, 

with this case load. This is a [sic] 

serious charges; and if this is being the 

case, Major [S] -- I know he is overloaded. 

I -- like I said, I may be from 

Massachusetts, but I’ve seen the case load 

that this office has. I don’t think that, 

at this time, that with Major [S’s] case 

load or the trial defense, with the shortage 

of attorneys they do have present to help 

with my defense, that I would get that full 

benefit of the government providing that 

defense. 

The military judge responded: 

Well, I can assure you that you would get a 

first class representation from the defense 

office here at Fort Bragg. I’ve been a 

military judge here now since last July and 

I’ve seen most of the attorneys who work for 

the trial defense service here at Fort Bragg 

in trial many times. They’re very good at 

what they do and they are very 

conscientious; and, there is no question in 

my mind that you would get a first class 

representation. However, as I read you your 

rights, you’re free to go search for a 

civilian attorney that you’ll pay for 

yourself . . . . 

The military judge then directed Major S to assist Appellant in 

finding a civilian counsel. 
United States v. Cain, No. 03-0212/AR 

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Shortly thereafter, Major S met with a civilian lawyer, 

Attorney T, to discuss an unrelated case. Major S asked 

Attorney T if he would consider talking to Appellant. According 

to Attorney T, Major S stated that the case was “enormously 

complicated,” adding that he needed “extra help,” particularly 

in terms of investigating events in New England, as well as with 

negotiations with the convening authority aimed at having the 

charges dropped based upon unlawful command influence. 

 Attorney T met with Appellant on the evening of January 21 

to discuss representation of Appellant at his court-martial. 

After obtaining assurances from Attorney T that any discussions 

preliminary to forming such an attorney-client relationship 

would be confidential, Appellant told the attorney that Major S 

had initiated a homosexual relationship with him shortly after 

Major S became his defense counsel. Attorney T told Appellant 

that the relationship was unethical, and that he would insist 

that the relationship cease if he became Appellant’s counsel. 

Appellant responded that Major S was working hard and doing well 

with the case, and that although Major S was not his “type,” the 

homosexual relationship had not become so burdensome that 

Appellant felt the need to terminate it. 

Attorney T raised the possibility of disclosing the details 

of the illegal relationship to military officials with a view 

towards obtaining a dismissal of the case. Appellant responded 
United States v. Cain, No. 03-0212/AR 

20

that he did not want to anger Major S or affect his career, and 

emphasized the confidential nature of the information. 

During further discussions the next day, Attorney T 

reiterated his view that the actions of Major S were unethical. 

He added that he could take the case only if Major S was removed 

from the defense team. According to the attorney, Appellant was 

anxious to ensure that he not tell anyone, including Major S, 

that Appellant had divulged the homosexual nature of the 

relationship. Attorney T maintained the confidence of their 

preliminary discussions, and did not represent Appellant at his 

court-martial. 

As the case moved towards trial on the merits in the spring 

of 1998, Appellant told a fellow soldier that “he was upset over 

the way his case was being handled” and revealed that Major S 

had required sexual favors of him. When asked why he did not 

get another attorney, he replied that “he was between a rock and 

hard place . . . [He] was not happy with [Major S], but he had 

gone so far with [Major S] that he could not turn back.” His 

former roommate, in whom he also confided, described him as 

“distraught” and fearful of retaliation or additional charges if 

he revealed that he had been pressured into a sexual 

relationship. Appellant’s mother gave a similar account. 

 Appellant consistently maintained to his defense team that 

he would not plead guilty to forcible sodomy. He asserted that 
United States v. Cain, No. 03-0212/AR 

21

he had not engaged in any non-consensual sexual activity with 

the alleged victims. Major S believed that the allegations of 

forcible sodomy were false and also was inclined to view the 

case as a matter of consensual sodomy. His investigation of the 

case led him to conclude that there were substantial grounds for 

contesting the charges, taking the position that the evidence 

was stale, the victims had credibility problems, and there was 

evidence of improper bias by the command in terms of retaliation 

against Appellant for whistleblower activities. Until shortly 

before the case was resolved, he appeared intent on contesting 

all charges. As noted in Section I.A.2, supra, the defense 

twice sought dismissal of the charges on procedural grounds, 

which were rejected by the military judge. 

In May of 1998, Captain L told Major S and Appellant that he 

viewed the prosecution as having a strong case, and he 

recommended that the defense initiate discussions with a view 

towards obtaining a pretrial agreement. Major S by then had 

alienated the prosecution to the point that he was not in a 

position to conduct such negotiations, so he delegated the task 

to Captain L. After a week of negotiations, the parties reached 

an agreement, and Appellant entered his guilty pleas to two 

specifications of indecent assault. 

The military judge presiding over the DuBay proceedings 

found that there had been a sexual relationship between Major S 
United States v. Cain, No. 03-0212/AR 

22

and Appellant throughout the period of representation. The 

military judge concluded that the relationship was not coerced, 

that it played no role in Appellant’s decision to enter guilty 

pleas, and that it did not create a conflict of interest. The 

military judge also concluded that the defense team provided 

Appellant with effective counsel in terms of filing motions that 

challenged the government’s case, advising the Appellant about 

the state of the evidence, and negotiating a favorable pretrial 

agreement. The Court of Criminal Appeals, which agreed with 

these conclusions, also concluded that Appellant waived any 

conflict of interest when he declined to follow the 

recommendation of two separate civilian attorneys to sever his 

relationship with Major S. 

 

II. DISCUSSION 

A. POTENTIAL CRIMINAL AND ADMINISTRATIVE ACTIONS RESULTING 

FROM THE CONDUCT BETWEEN THE ATTORNEY AND HIS CLIENT 

 Major S, the attorney, engaged in a course of conduct with 

Appellant, his client, which exposed both of them to the 

possibility of prosecution, conviction, and substantial 

confinement for the military crimes of fraternization and 

sodomy. An officer who violates the custom of the armed forces 

against fraternization with an enlisted person may receive a 

sentence that includes confinement for two years, a punitive 
United States v. Cain, No. 03-0212/AR 

23

separation, and forfeiture of all pay and allowances. See

Article 134; Manual for Courts-Martial, United States (2002 ed.) 

[hereinafter MCM], Part IV, para. 83.(e). Officers and enlisted 

members who engage in sodomy, even if not forcible, may receive 

a sentence for each offense that includes five years 

confinement, a punitive separation, and forfeiture of all pay 

and allowances. Article 125; MCM, Part IV, para. 51.e.1

Fraternization and sodomy are not minor or obscure matters. 

The policies of the armed forces on both fraternization and 

homosexuality have been the subject of significant litigation 

and public controversy in recent years. See, e.g., David S. 

Jonas, Fraternization: Time For A Rational Department Of Defense 

Standard, 135 Mil. L. Rev. 37 (1992); Jeffrey S. Davis, Military 

Policy toward Homosexuals: Scientific, Historical, and Legal 

Perspectives, 131 Mil. L. Rev. 55 (1991). Less than five years 

before Appellant's trial -- while both Major S and Appellant 

were members of the Army -- the executive and legislative 

branches of government engaged in a highly publicized review of 

the policies pertaining to homosexuality in the armed forces. 

See National Defense Authorization Act for Fiscal Year 1994, 

 

1 A constitutional challenge to sodomy as a criminal offense in the military 

is currently before this Court in another case, United States v. Marcum, 59 

M.J. 131 (C.A.A.F. 2003)(pet. granted), and we express no opinion at this 

time as to whether such a challenge would or should prevail. Our discussion 

of the potential penalties for sodomy in the current case reflects the 

provisions of the MCM in effect at the time of trial. 
United States v. Cain, No. 03-0212/AR 

24

Pub. L. No. 103-160, § 571(a)(1), 107 Stat. 1670 (codified at 10 

U.S.C. § 654); H.R. Rep. No. 103-200, at 286 (1993); S. Rep. No. 

103-112, at 263 (1993). This debate culminated in the passage 

of legislation, signed into law by the President, which declares 

that “[t]he presence in the armed forces of persons who 

demonstrate a propensity or intent to engage in homosexual acts 

would create an unacceptable risk to the high standards of 

morale, good order and discipline, and unit cohesion that are 

the essence of military capability.” 10 U.S.C. § 654(a)(15). 

The legislation mandates discharge of any service member who has 

engaged in a homosexual act, subject to narrowly drawn 

exceptions. Id. at § 654(b). As a result, even if not 

prosecuted for sodomy in a court-martial, the conduct initiated 

by Major S exposed him and Appellant to administrative 

proceedings that could have resulted in involuntary termination 

for homosexuality. Moreover, Major S would have faced the 

possibility of a discharge for soliciting and committing 

homosexual acts “with a subordinate in circumstances that 

violate customary military superior-subordinate relationship.” 

Dep’t of the Army Regulation (AR) 600-8-24, Officer Transfers 

and Discharges (Feb. 3, 2003) para. 4-22h(3)(current version 

substantively identical to the version in effect at trial). 
United States v. Cain, No. 03-0212/AR 

25

B. ETHICAL CONSIDERATIONS 

 In addition to potential criminal or administrative action 

for misconduct as an Army officer, Major S engaged in conduct 

that subjected him to the possibility of additional disciplinary 

action for violation of the ethical rules applicable to 

attorneys in the Army. Rule 1.7(b) of the Army Rules of 

Professional Conduct for Lawyers prohibits representational 

conflicts of interest, specifying that “[a] lawyer shall not 

represent a client if the representation of that client may be 

materially limited . . . by the lawyer’s own interests . . . ." 

AR 27-26, Army Rules of Professional Conduct, Appendix B (May 1, 

1992). Rule 1.2(d) states that “[a] lawyer shall not counsel a 

client to engage, or assist a client, in conduct that the lawyer 

knows is criminal or fraudulent.” Id. 

 With respect to sexual activity between attorneys and 

clients, civilian jurisdictions have taken a variety of 

positions on whether there should be a complete prohibition 

during an ongoing attorney-client relationship, or whether 

sexual activity should be prohibited only in specified 

circumstances. See, e.g., Abed Awad, Attorney-Client Sexual 

Relations, 22 J. Legal Prof. 131 (1998). The Army has endorsed 

the views of the American Bar Association Standing Committee on 

Ethics and Professional Responsibility, as expressed in Formal 

Opinion 92-364 (1992) [hereinafter ABA Formal Op. 92-364]. See
United States v. Cain, No. 03-0212/AR 

26

Army Office of the Judge Advocate General Standards of Conduct 

Office, Professional Responsibility Notes, 1993 Army Law. 48 

(August 1993)(quoting ABA Formal Op. 92-364 in full). The ABA 

opinion observed that sexual relations between an attorney and 

client -- 

may involve unfair exploitation of the 

lawyer’s fiduciary position and presents a 

significant danger that the lawyer’s ability 

to represent the client adequately may be 

impaired . . . . The roles of lover and 

lawyer are potentially conflicting ones as 

the emotional involvement that is fostered 

by a sexual relationship has the potential 

to undercut the objective detachment that is 

often demanded for adequate representation. 

Id. at 49. The ABA opinion also observed that -- 

the client may not feel free to rebuff 

unwanted sexual advances because of fear 

that such a rejection will either reduce the 

lawyer’s ardor for the client’s cause or, 

worse yet, require finding a new lawyer, 

causing the client to lose the time and 

money that has already been invested in the 

present representation and possibly damaging 

the client’s legal position. 

Id. at 51. See Colorado v. Good, 893 P.2d 101, 104 (Colo. 1995) 

(quoting ABA Formal Op. 92-364); see also Restatement (Third) of 

Law Governing Lawyers, § 16, Comment e (2000)("A lawyer may not 

. . . enter a sexual relationship with a client when that would 

undermine the client’s case, abuse the client’s dependence on the 

lawyer, or create risk to the lawyer’s independent judgment . . . 

.") 
United States v. Cain, No. 03-0212/AR 

27

C. THE IMPACT OF CRIMINAL CONDUCT AND ETHICAL VIOLATIONS 

 ON THE CONSTITUTIONAL RIGHT 

 TO EFFECTIVE ASSISTANCE OF COUNSEL 

Members of the armed forces facing criminal charges, like 

their civilian counterparts, have a constitutional right to 

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

Court reviews claims of ineffective assistance of counsel de 

novo. United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 

2002)(applying the two-prong test established by the Supreme 

Court in Strickland v. Washington, 466 U.S. 668, 687 (1984): 

“First, the defendant must show that counsel’s performance was 

deficient. . . . Second, the defendant must show that the 

deficient performance prejudiced the defense.”). 

An attorney's violation of the canons of legal ethics does 

not necessarily render the attorney's assistance ineffective. 

Nix v. Whiteside, 475 U.S. 157, 165 (1986). In some 

circumstances, the "high probability of prejudice" and the 

"difficulty of proving that prejudice" require the application 

of a rule that the conduct is inherently prejudicial. See

Mickens v. Taylor, 535 U.S. 162, 175-76 (2002)(citing Cuyler v. 

Sullivan, 446 U.S. 335, 348-49 (1980); Holloway v. Arkansas, 435 

U.S. 475, 490-91 (1978)(cases involving multiple concurrent 

representation)). The Court emphasized in Mickens, however, 

that “[n]ot all attorney conflicts present comparable 
United States v. Cain, No. 03-0212/AR 

28

difficulties,” and that most cases will require specifically 

tailored analyses in which the appellant must demonstrate both 

the deficiency and prejudice under the standards set by 

Strickland. 535 U.S. at 175-76. 

When an attorney has engaged in criminal misconduct similar 

to the conduct at issue in Appellant’s trial, the federal courts 

have taken different approaches on the question of whether there 

is inherent prejudice or whether prejudice must be specifically 

demonstrated. Compare United States v. Cancilla, 725 F.2d 867 

(2d. Cir. 1984)(not requiring a demonstration of specific 

prejudice) with Cerro v. United States, 872 F.2d 780 (7th Cir. 

1989)(requiring the presence of specific facts to trigger a 

finding of prejudice); cf. Government of the Virgin Islands v. 

Zepp, 748 F.2d 125, 136 (3d. Cir. 1984)(“[I]t is unrealistic for 

this court to assume that Zepp’s attorney vigorously pursued his 

client’s best interest entirely free from the influence of his 

concern to avoid his own incrimination.”). 

In United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988), our 

Court considered the impact on the effective assistance of 

counsel in a case where a male civilian defense attorney engaged 

in a consensual sexual act with his female military client 

during the evening before the final day of her trial. In those 

circumstances, our Court declined to hold that every sexual 

relationship between an attorney and client necessarily creates 
United States v. Cain, No. 03-0212/AR 

29

a conflict of interest that violates a client's Sixth Amendment 

right to the effective assistance of counsel. Id. at 158-59. 

D. THE COMBINATION OF POTENTIAL CRIMINAL LIABILITY 

AND ETHICAL MISCONDUCT 

The appeal before us presents a case of first impression, 

with no direct counterpart in civilian law. The case involves a 

volatile mixture of sex and crime in the context of the 

military's treatment of fraternization and sodomy as criminal 

offenses. 

Defense counsel’s conduct with his client placed both the 

attorney and client at the risk of criminal prosecution for 

violating the very article of the UCMJ, Article 125, that was 

the subject of the present case. Well before the onset of 

trial, Major S repeatedly placed himself at risk of severe 

personal and professional consequences, including the 

possibility of confinement by court-martial, administrative 

termination of his military career, and professional discipline. 

The extraordinary pressure under which he labored during his 

representation of Appellant is underscored tragically by the 

fact that he took his own life less than a day after he was 

informed that his superiors had learned of his personal 

relationship with Appellant. 
United States v. Cain, No. 03-0212/AR 

30

 Because of counsel’s suicide, we do not have the benefit of 

any testimony that he might have provided as to what 

consideration he gave potential defense strategies in this case. 

In the absence of such testimony, we consider the case from the 

perspective of a military defense counsel caught between the 

conflicting pressures generated by his own sexual misconduct and 

his professional responsibilities. By his actions, counsel 

placed himself and his client in a position where testimony by 

the client entailed significant risks. Any exploration into 

Appellant’s conduct would have raised the possibility that the 

prosecution would have endeavored through cross-examination or 

rebuttal to elicit evidence of similar sexual misconduct. This 

would have created the potential for exposing counsel’s sexual 

misconduct with Appellant. 

In those circumstances, defense counsel faced a conflict 

between his personal interests and his responsibility to give 

thoughtful, dispassionate consideration and advice concerning 

the range of options facing the defense. We do not know whether 

the defense counsel in this case rejected any specific option on 

the grounds that it was not in his client’s best interest, or 

because it was not in his own best interest. We do know that 

when confronted about the sexual misconduct with his client, it 

was only a matter of hours before he took his own life. 
United States v. Cain, No. 03-0212/AR 

31

The uniquely proscribed relationship before us was 

inherently prejudicial and created a per se conflict of interest 

in counsel’s representation of the Appellant. The facts of this 

case are distinguishable from the limited, consensual 

relationship between a civilian counsel and his client that we 

considered in Babbitt, where we declined to find such a per se 

conflict. 26 M.J. at 158-59. Here, we confront a course of 

conduct involving an attorney’s abuse of a military office, a 

violation of the duty of loyalty, fraternization, and repeated 

commission of the same criminal offense for which the attorney’s 

client was on trial. All of this is left unexplained due to the 

attorney’s untimely death. As stated by the Second Circuit in 

Cancilla, the conflict created by this conduct was “real, not 

simply possible” and “so threatening as to justify a presumption 

that the adequacy of representation was affected.” 725 F.2d at 

870. 

 The problems flowing from the conduct of Major S are not 

overcome in this case by actions of the assistant defense 

counsel, Captain L, who negotiated the pretrial agreement. 

Major S was the experienced, lead counsel in the case. 

Appellant relied on Major S and was entitled to the benefit of 

conflict-free advice from Major S about the range of 

alternatives before him. He did not receive that advice. 
United States v. Cain, No. 03-0212/AR 

32

 With respect to waiver, we note that the court below relied 

on Appellant's discussions with two civilian lawyers, Attorney W 

and Attorney T, in concluding that he waived any objection to 

Major S as his counsel. Both attorneys advised him to sever the 

relationship because the behavior of Major S was unethical. 

Neither attorney, however, provided him with a detailed 

explanation of the relationship between the merits of the case 

and the attorney’s ethical obligations. Both focused on the 

matter from the attorney’s perspective, not the client’s 

perspective. Attorney W declined to discuss the substance of 

the charges with Appellant, and Attorney T focused primarily on 

the fact that he would not take the case if Major S remained on 

it. We do not fault either attorney for not engaging in a 

detailed discussion with Appellant of the impact of any 

unethical behavior by Appellant on the merits of his case. In 

both cases, the discussions between the apparently distraught 

Appellant and the cautious lawyers simply did not advance to the 

point of forming an attorney-client relationship with respect to 

the charged offenses. Appellant's conversations with the two 

civilian attorneys in this case did not involve the type of 

informed discussion of the specific pitfalls of retaining Major 

S that would demonstrate a knowing, intelligent waiver of the 

right to effective assistance of counsel. See United States v. 

Henry, 42 M.J. 231, 237 (C.A.A.F. 1995). 
United States v. Cain, No. 03-0212/AR 

33

DECISION 

 The decision of the United States Army Court of Criminal 

Appeals is reversed. The findings of guilty and sentence are 

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

Advocate General of the Army. A rehearing may be ordered. 
United States v. Cain, No. 03-0212/AR 

 CRAWFORD, Chief Judge (dissenting): 

 I respectfully dissent from the majority’s creation of a 

per se rule of ineffectiveness that is contrary to Supreme Court 

precedent. Mickens v Taylor, 535 U.S. 162, 172-73 (2002) 

(noting that because there is no rule of per se ineffectiveness, 

an appellant must demonstrate that “conflict significantly 

affected counsel’s performance”). But cf. Nixon v. Florida, 857 

So. 2d 172 (Fla. 2003)(defendant’s acquiescence in defense 

counsel’s strategy which was the functional equivalent of a 

guilty plea, regardless of its wisdom, was held to be per se 

ineffectiveness), cert. granted, 2004 U.S. LEXIS 1643 (March 1, 

2004). This Court is, and should be, deeply concerned about an 

accused’s right to effective assistance of counsel and a fair 

trial. Nevertheless, to determine whether counsel has rendered 

ineffective assistance to an accused, we are bound by our own 

and Supreme Court precedent. This precedent dictates that 

ineffective assistance requires both deficient performance and

prejudice. Because Appellant has demonstrated no prejudice in 

this case, I respectfully dissent from the lead opinion. 

 “In reviewing claims of ineffective assistance of counsel 

based on deficient representation, we must apply the two-prong 

test articulated by the Supreme Court in Strickland v. 

Washington, 466 U.S. 668 (1984).” United States v. Babbitt, 26 

M.J. 157, 158 (C.M.A. 1988). 
United States v. Cain, No. 03-0212/AR 

2

First, the defendant must show that counsel's 

performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not 

functioning as the “counsel” guaranteed the defendant 

by the Sixth Amendment. Second, the defendant must 

show that the deficient performance prejudiced the 

defense. This requires showing that counsel's errors 

were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable. 

Strickland, 466 U.S. at 687 (emphasis added). The Court added 

that “if it is easier to dispose of an ineffectiveness claim on 

the ground of lack of sufficient prejudice, which we expect will 

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

(emphasis added). 

 The type of conflict presented in this case is not unique 

to the military. In fact, there have been many federal cases 

addressing ineffectiveness where the client and attorney were 

allegedly involved in a related criminal endeavor. See, e.g., 

United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984)(attorney 

participated with client’s coconspirators in crime similar to 

client’s); United States v. Briguglio, 675 F.2d 81 (3d Cir. 

1982)(attorney under investigation by United States Attorney’s 

Office prosecuting client). To assess ineffectiveness in these 

cases, the courts have rejected a per se rule and, instead, have 

examined the record to determine if there was prejudice. Unlike 

the instant case, in none of the federal cases was there the 

mitigating presence of an independent counsel, or a guilty plea 
United States v. Cain, No. 03-0212/AR 

3

tested through the extensive providence inquiry required in 

military practice. 

 Appellant in the case at bar has failed to demonstrate any

prejudice. Despite his admission of guilt to the charge of 

indecent assault, Appellant availed himself of a pretrial 

agreement which reduced the charges and limited the duration of 

the adjudged confinement. Indeed, Major S’s representation 

successfully gave Appellant the benefit of his bargain and, as 

the lower court noted, “it is difficult to imagine what more 

[the defense] could have done on [Appellant’s] behalf to produce 

a more favorable result.” United States v. Cain, 57 M.J. 733, 

739 (A. Ct. Crim. App. 2002). In addition, the pretrial 

agreement which dictated the outcome of the case was negotiated 

by Captain L, who was unaffected by Appellant’s relationship 

with Major S. The mitigating presence of an independent third 

party counsel who reviewed and endorsed the vehicle which 

secured Appellant’s fate at trial renders prejudice simply 

untenable. In sum, given the absence of any prejudice in this 

case, there simply cannot have been ineffective assistance. 

Moreover, this Court has repeatedly emphasized the military 

judge’s obligation to ensure that guilty pleas are voluntary and 

pretrial agreements are well understood. Rule for CourtsMartial 910. See, e.g., United States v. King, 3 M.J. 458 

(C.M.A. 1977)(holding that the military judge must confirm at 
United States v. Cain, No. 03-0212/AR 

4

trial that the written plea agreement encompasses both parties’ 

understanding of the meaning and effect of the plea bargain). 

Indeed, “[t]he military justice system imposes even stricter 

standards on military judges with regards to guilty pleas than 

those imposed on federal civilian judges.” United States v. 

Perron, 58 M.J. 78, 81 (C.A.A.F. 2003). Only after meeting this 

stringent prerequisite may a military judge pronounce the 

binding effect of the pretrial agreement on both parties. 

United States v. Lanzer, 3 M.J. 60, 62 (C.M.A. 1977)(noting that 

pretrial agreements will be strictly enforced where the 

intention of the parties at the time of the agreement is clear). 

This Court’s exacting standards in this regard prompted the 

Judicial Conference of the United States to recommend that other 

federal courts require its judges to conduct a similar inquiry 

into plea agreements. Judicial Conference of the United States 

Committee on Rules of Practice and Procedure, Report of the 

Advisory Committee on Criminal Rules, 65 Crim. L. Rep. (BNA) 140 

(May 5, 1999). 

The detailed providence inquiry in this case, informed by 

Appellant’s binding stipulation of fact, is abundantly clear 

that Appellant knowingly and willingly pleaded guilty to the 

charged offense, knowingly and willingly entered the pretrial 

agreement, and was indeed satisfied with the assistance of 

counsel that accompanied his decision to plead guilty and enter 
United States v. Cain, No. 03-0212/AR 

5

the pretrial agreement. See United States v. Redlinski, 58 M.J. 

117, 119 (C.A.A.F. 2003)(noting that this Court considers the 

context of the entire record to determine whether a plea was 

provident). The military judge questioned Appellant, in 

pertinent part, as follows: 

MJ: Anyone force you to enter into this 

agreement? 

ACC: No, Your Honor. 

. . . . 

MJ: Anyone made any promises to you that aren’t 

written into this agreement in an attempt to get you 

to plead guilty? 

ACC: No, Your Honor. 

. . . . 

MJ: . . . Paragraph 4 [of the pretrial agreement] 

says that the offer to plead guilty originated with 

you; and, that no person made any attempt to force or 

coerce you into making this offer. That just means it 

was your idea. Was it? 

ACC: Yes, it was, Your Honor. 

. . . . 

MJ: Have you had enough time to discuss this 

agreement with both of your defense counsel? 

ACC: I have, Your Honor. 

MJ: Are you satisfied with their advice regarding 

this pretrial agreement? 

ACC: I am, Your Honor. 

MJ: And, again, I ask you, did you enter into the 

agreement of your own free will? 
United States v. Cain, No. 03-0212/AR 

6

ACC: I did, Your Honor. 

MJ: Did anybody force you to do this? 

ACC: No, Your Honor. 

. . . . 

MJ: You fully understand all of the terms and 

conditions [of the pretrial agreement] and how they 

are going to affect your case? 

ACC: I do, Your Honor. 

. . . . 

MJ: Are you satisfied [with your defense 

counsels’] advice with regard to your case? 

ACC: I am, Your Honor. 

MJ: Satisfied with them as your defense counsel? 

ACC: Yes, Your Honor. 

MJ: Are you pleading guilty voluntarily and of 

your own free will? 

ACC: I am, Your Honor. 

MJ: Anyone made any threat or tried in any way to 

force you to plead guilty? 

ACC: No, Your Honor. 

. . . . 

MJ: Sergeant Cain, I find that your plea of 

guilty is made voluntarily and with full knowledge of 

its meaning and effect. 

I further find that you have knowingly, 

intelligently and consciously waived your rights 

against self-incrimination, to a trial of the facts by 

a court-martial and to be confronted by the witnesses 

against you. 
United States v. Cain, No. 03-0212/AR 

7

Accordingly, your plea of guilty is provident. 

It is accepted. 

Given this Court’s longstanding efforts to ensure that guilty 

pleas are sincere and voluntary, and that only legitimate, 

mutually-selected pretrial agreements are put into effect, this 

Court is remiss to reverse Appellant’s conviction – and in so 

doing negate his accepted guilty plea and rescind his binding 

pretrial agreement – in the absence of any prejudice. 

Finally, even if Appellant had suffered prejudice, he 

affirmatively waived his right to conflict-free representation 

when he freely and deliberately entered into a relationship with 

his defense counsel. See United States v. Mezzanatto, 513 U.S. 

196, 201 (1995)(establishing that an appellant may waive many of 

the most fundamental constitutional rights). “The determination 

of whether there has been an intelligent waiver . . . [depends] 

upon the particular facts and circumstances surrounding that 

case, including the background, experience, and conduct of the 

accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The 

lower court made extensive findings of fact regarding the 

consensual, informed, and deliberate nature of Appellant’s 

relationship with Major S: 

• Appellant was 33-years-old, a sergeant with more than 

12 years of service, with a GT score of 112 and a twoyear associate’s degree. 
United States v. Cain, No. 03-0212/AR 

8

• Appellant told several people that he continued the 

relationship only because he wanted defense counsel to 

continue to represent him. Appellant considered 

defense counsel to be an “excellent, dynamic, and 

aggressive” attorney, and believed that because 

counsel was gay, like Appellant, counsel would fight 

even harder on Appellant’s behalf. Appellant believed 

Major S was the best military defense counsel 

available. 

• Appellant never told defense counsel that he had any 

reservations about their relationship. Appellant 

testified at the hearing pursuant to United States v. 

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), “[N]ot 

once did I protest what he was doing to me or what he 

had me do to him.” 

Cain, 57 M.J. at 735. There was no doubt that Appellant wanted

Major S to defend him, and did what he felt was necessary to 

secure Major S’s “excellent, dynamic, and aggressive” 

representation. Id. Indeed, “Appellant knew what he was doing 

when he made his choice.” Id. at 739. In short, through his 

calculated involvement with his defense counsel, Appellant 

waived his right to conflict-free representation. 

 For these reasons, I respectfully dissent from the lead 

opinion.