Coming to a CAFFé near you?

United States v. Marshalek, __ M.J. ___, ARMY 20240324 (A. Ct. Crim. App. Sept. 28, 2026), provides an interesting answer.

The case matters because ACCA answers Gilmet's unanswered question about apparent UCI and the evidentiary standard of Article 37.

Marshalek’s lead military defense counsel had represented him for more than six months and devoted 215 hours to his defense. She came to believe that continuing to represent him zealously could affect her next Army assignment, her professional reputation, and her military career. She told the military judge that the perceived conflict between her interests and Marshalek’s interests would affect the quality of her representation.

It all seems to have started at trial when counsel suggested the prosecution had been unethical. The prosecution wanted to counter-claim against her. Trial Counsel was from 1st SFC(A), which is were defense counsel was slated to go. These events set off a chain of communications, ACCA calls  

Later litigation established that counsel’s perception of the threat to her career was mistaken.

ACCA holds that her reasonable belief mattered even though the perceived threat ultimately proved unfounded. Relying on United States v. Hardy, 44 M.J. 507 (A.F. Ct. Crim. App. 1996), ACCA says the proper inquiry is not whether there is proof of an actual conflict. It is what the attorney believed. If counsel reasonably believes her personal interests will materially affect her representation, that perception can supply good cause to sever the attorney-client relationship over the client’s objection.

That makes Marshalek more significant than a case about a misunderstanding over an assignment. A military defense counsel believed that her advocacy for a client could affect her career. That belief affected her ability to continue representing him. And Marshalek lost the lawyer he wanted to keep.

After which, he hired civilian counsel.

But that is not the most important point. The important point is that she believed the threat was real.

ACCA decides a second, potentially broader issue. The events that caused counsel to withdraw also produced an unlawful command influence claim. In deciding that claim, ACCA squarely answers a question left unresolved after Congress amended Article 37, UCMJ:

Does apparent unlawful command influence remain an independent basis for relief?

The record is clear that all those involved were acting with good intentions: the leadership at 1st SFC(A) sought only to confirm that the lead defense counsel still desired the assignment, while the lead defense counsel and the RDC sought to safeguard appellant's right to a fair trial. Ultimately, however, misunderstandings distorted well-intentioned efforts, resulting in the lead defense counsel's request to withdraw.

In light of this amendment, we now read a requirement to show an intent to influence the action of the court-martial in order to constitute a violation of Article 37, UCMJ.
. . . 
This recent amendment requiring prejudice to the accused can leave no doubt of Congress's intent to remove the appearance of unlawful command influence as a basis for relief under Article 37, UCMJ. We now hold that the current version of Article 37, UCMJ, only provides actual command influence as a basis for dismissing a finding or sentence, which is the relief appellant requests here.

ACCA notes that during some of the discussions leading up to the issue, Gilmet was on at least one player's mind. Remember, Gilmet involved statements by a senior Marine about the trial defense counsel and follow-on orders. Thus, this case shows Gilmet's knock-on effect. It is one reason an accused seeks civilian counsel.

Appellant's brief at ACCA and Orders. This Motion is particularly interesting for reliance on Al Nashiri and release of counsel.

---

Your browser does not support viewing this document. Click here to download the document.