9 C.M.A. 614 | United States Court of Military Appeals | 1958
Dissenting Opinion
(dissenting):
My reasons for not concurring with my associates are set forth in my dissenting opinion in United States v Kraskouskas, 9 USCMA 607, 26 CMR 387, this day decided. However, I wish to point out the care this law officer exercised in advising the accused of his rights. This is the record:
“DC: The accused has been advised of his rights and he waives the presence of the appointed defense counsel and assistant defense counsel.
“LO: Airman Davis, do you understand one of the members of the prosecution has been certified by the Judge Advocate General of the Air Force, in accordance with Article 27b of the Uniform Code of Military Justice and has qualified in the duties of trial and defense counsel for general courts-martial. No member of the defense has equivalent legal qualifications and you have the right to be represented by counsel who has*615 such qualification; unless you expressly request that you be represented by the defense counsel now present, the court will adjourn pending procurement of defense counsel who is so qualified. I would like to know if you request to be represented by Major Mullís.
“ACC: Yes, sir, I do.
“LO: Do you also wish the serv-ises [sic] of counsel who has leg41 qualification equivalent to those of Captain Crawford, member of the prosecution who has been certified.
“ACC: No, sir, I don’t request one.”
Needless to say, I would affirm the decision of the board of review.
Lead Opinion
Opinion of the Court
The accused, at his trial for larceny, expressly declined the services of the certified defense counsel appointed to represent him and was, at his request, represented at trial by individual military counsel who was not certified by The Judge Advocate General and who did not possess the legal qualifications enumerated in Article 27(b) (1) of the Uniform Code of Military Justice, 10 USC § 827. It is contended that the law officer erred to the substantial prejudice of the accused in allowing an unqualified “counsel” to represent the accused.
As was clearly enunciated in United States v Kraskouskas, 9 USCMA 607, 26 CMR 387, and for the reasons there set forth, an accused, even at his own insistence, may not be permitted lay representation before a general court-martial.
The decision of the board of review is reversed. A rehearing may be ordered.
