5 M.J. 451 | United States Court of Military Appeals | 1978
Lead Opinion
Opinion of the Court
The appellant was represented at trial both by privately retained civilian defense counsel and by detailed military defense counsel. Subsequent to trial but before completion of the staff judge advocate’s post-trial review, the military defense counsel was discharged from the service. Upon completion of the review, a substitute defense counsel was designated to represent the appellant; and he was served with the post-trial review pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975). The substitute defense counsel responded to the review, indicating that he noted no errors therein. However, he neither contacted the civilian defense counsel who continued to represent the appellant after trial, see United States v. Palenius, 2 M.J. 86 (C.M.A.1977) , in order to aid the civilian counsel to respond to the review, nor contacted the appellant in order to enter into an attorney-client relationship with him, see United States v. Iverson, 5 M.J. 440 (C.M.A.1978) , and United States v. Brown, 5 M.J. 454 (C.M.A.1978).
Under these circumstances, “the substitute defense counsel improperly purported to represent the appellant at that stage of the proceedings,” United States v. Brown, supra, with the result that, as a matter of law, no one reviewed the post-trial review on the appellant’s behalf, see United States v. Hill, 3 M.J. 295 (C.M.A.1977).
The decision of the United States Navy Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to the Judge
Dissenting Opinion
(dissenting):
As I indicated in United States v. Iverson, 5 M.J. 440 (C.M.A.1978), separation of military counsel from the service justifies appointment of substitute counsel for the purpose of satisfying the Goode
At trial, the accused was represented by civilian counsel, Mr. Sacks, a member of the Bar of the Commonwealth of Virginia, and he expressly asked that appointed military counsel continue in the case. In that situation, Mr. Sacks was chief counsel and the military lawyer was “associate counsel,” as provided by Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b). See United States v. Tellier, 13 U.S.C.M.A. 323, 32 C.M.R. 323 (1962).
When several lawyers represent the same party, allocation of responsibility for particular actions in • the case rests with chief counsel, subject to the discretion of the judge as regards events in the courtroom, such as division of responsibility for conducting the examination of witnesses and division of parts of the opening and closing argument.
In my separate opinion in Iverson, I observed that “defense counsel at trial continues as such for the post-conviction proceedings before the convening authority.” See also United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978). The statement is unqualified as to appointed military counsel, but it must be read with reservation as to a civilian lawyer.
The scope of a retained civilian lawyer’s responsibility may be defined in his retainer. Thus, in retaining civilian counsel, an accused might expressly agree that, in the event of a verdict of guilty, civilian counsel will have no obligation to act in the case after the imposition of sentence by the court-martial. In that situation appointed military counsel would alone have the responsibility for examining and responding to the staff judge advocate’s review, in satisfaction of the Goode rule. No evidence of a limited retainer appears in the record, and, accordingly, I am willing to assume that, as is true of military counsel, civilian counsel’s connection with the case continued for the post-conviction proceedings incident to the convening authority’s action. See my opinion in United States v. Jeanbaptiste, supra at 377 n. 4. But, it does not follow that service of the staff judge advocate’s review must be made only on civilian counsel in order to satisfy the Goode rule. Jeanbaptiste held to the contrary.
In Jeanbaptiste, the accused was represented at trial by retained civilian counsel
This case is different from Jeanbaptiste in that another military lawyer was substituted for the military counsel who had represented the accused at trial because the latter had left the service before preparation of the post-trial review. As I noted earlier, however, detail of another military lawyer to replace a defense counsel who had been separated from the service is proper. This new lawyer received, and formally responded to, the review, as “detailed defense counsel.” In United States v. Daly, 4 M.J. 145, 146 (C.M.A.1977), the Court said that an “attorney and counselor in the bar of a court who appears in that court in behalf of a client is presumed to be so authorized.” And, in the absence of evidence “implying the negative” the Court refused to “impugn the integrity” of the lawyer “by requiring . . . [him] to prove what he . has affirmatively represented to be a fact.” (footnotes omitted). Not an iota of evidence in this record disputes the representation implied by counsel’s formal appearance in the post-conviction proceedings, that a proper attorney-client relationship existed between the accused and newly detailed military counsel. With that relationship in effect, adhering to what the Court said and did in Jeanbaptiste requires that the Court sustain the procedure in this case as being in compliance with the Goode rule.
I would affirm the decision of the Court of Military Review.
. United States v. Goode, 1 M.J. 3 (C.M.A.1975).
. For present purposes I need not consider whether an “associate” counsel has more authority than an “assistant” counsel. See Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 47.
Concurrence Opinion
I concur. See my dissent in United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978).