Marcus T. Golston Specialist U.S.Army Convicted Sex Offender Indecent Acts With A Child

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Name: Marcus T. Golston

Case: United States v. Golston No. 99-0286

Date Of Appeal: November 10, 1999

Plea: Not Guilty

Charges: Indecent Acts With A Child

Military Branch: U.S. Army

Listed In National Sex Offenders Registry? NO

Judge SULLIVAN delivered the opinion of the Court.

During the early part of 1996, appellant was tried by a general court-martial composed of officer and enlisted members at Darmstadt and Kaiserslautern, Germany. Contrary to his pleas, he was found guilty of two specifications of indecent acts, each with a different child, and one specification of indecent liberties with two other female children, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934.

The members sentenced appellant to a dishonorable discharge, 7 years’ confinement, forfeiture of $874 pay per month for 84 months, and reduction to E-1. The convening authority approved the sentence as adjudged on September 30, 1996. The Court of Criminal Appeals affirmed the findings and sentence in a per curiam opinion on August 11, 1998.

Evidence was admitted at appellant’s court-martial that in July, 1994, he exposed himself, while standing on his balcony, to two young girls whom he knew were watching him from a neighboring bathroom (S.H. age 11; S.S. age 8).

Evidence was also admitted showing another incident involving two different girls (I.R. age 6; M.M. age 7). It showed that appellant was playing with his toddler son in a playground in his housing area, and the two girls were in the same area. Appellant reached under the dress of one of the girls and touched her vaginal area two times. With the other girl, appellant played "hide the ball" by slipping a tennis ball into her pants and having her "worm" around until it came out. That evening, the two girls told their parents what had happened in the playground.

When trial counsel discovered that he had previously represented Mrs. Golston and disclosed that fact to assistant trial counsel, both officers had an ethical duty to disclose the conflict of interest to the military judge immediately, and not wait for two more weeks until Mrs. Golston raised the issue in the middle of this trial. See United States v. Murphy, 50 MJ 4, 10 (1998) (appellant entitled to have military judge settle conflict-of-interest issues on the record); United States v. Breese, 11 MJ 17, 23 (CMA 1981) (conflict of interest presumed where military judge has not conducted suitable inquiry). Both officers had a duty to "avoid the very appearance of that wrongdoing which, in obedience to the important policy dictating [the attorney-client] relationship, the courts are impelled to deplore . . . ." United States v. McCluskey, 6 USCMA 545, 550, 20 CMR 261, 266 (1955). In my view, they failed in that duty.

To Mrs. Golston and any observer who knew that trial counsel had represented her, the situation looked like a conflict of interest. To Mrs. Golston and any observer who knew that trial counsel had represented her, it appeared that trial counsel had breached the attorney-client privilege when assistant trial counsel cross-examined her about the same matter that she and trial counsel had exchanged confidential communications. The prosecution team violated the precept announced in McCluskey and codified in the ABA Code of Professional Responsibility.

I agree with the majority’s ultimate conclusion that appellant was not prejudiced under the specific facts of this case. I sincerely hope that this case will cause prosecutors to be more sensitive to the potential for conflicts of interest arising from multiple military duties.