20 C.M.A. 160 | United States Court of Military Appeals | 1970
Lead Opinion
The issue in this case is the same as in United States v Bowman, 20 USCMA 119, 42 CMR 311 (1970) ,
In Donohew, we placed upon the law officer the personal responsibility for determining, by direct questioning, whether the accused was aware of and understood his right to the advice and assistance of counsel as provided in Article 38(b), Uniform Code of Military Justice, 10 USC § 838. As we said in Donohew, at page 152:
“We believe the seriousness of the situation dictates that the record, should contain the accused’s personal response to direct questions incorporating each of the elements of Article 38(b), as well as his understanding of his entitlement thereunder.” [Emphasis supplied.]
In this case, as in Bowman, a written form containing information from Article 38(b), (Appellate Exhibit 2),
We cannot accept the shortcut procedure utilized in this ease. As we said in Bowman, at page 122:
“The exhibit is helpful in demonstrating that the accused was advised by his attorney prior to trial concerning his entitlement to counsel. But that was the law in force at the time of Donohew. The exhibit should not and cannot be a substitute for the in-court, on-the-record advice and determination of understanding and choice to be made by the law officer in all cases tried thirty days after March 7, 1969, the date of the Donohew opinion.”
The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
APPENDIX
“RIGHTS TO COUNSEL UNDER ARTICLE 38(b), UNIFORM CODE OF MILITARY JUSTICE
“I am William D. Goodin, the ac-(Name)
cused in a case which has been referred to trial by general court-martial. I acknowledge that I have been informed by Cpt Slicker that I have the fol-(Name of Counsel) lowing rights:
INITIALS
1.1 have the right to be represented at trial by a civilian lawyer, if I hire and pay him or otherwise engage him to represent me. WDG
2.1 have the right to be represented at trial by a military lawyer free of charge; by my detailed defense counsel, or by a military lawyer of my own selection, if reasonably available. My detailed defense counsel will assist me in requesting the latter, if I desire. WDG
3. If I desire, my detailed defense counsel may continue to act as associate counsel
/s/ William D. Goodin (Signature of accused; Date)
“I certify that on 8 June 1969 and 24 July, 69 I have advised the above named accused of the above-mentioned rights.
/s/ Frederick K. Slicker (Signature of detailed counsel; Date)
24 July 1969
HFL Form 1035
6 May 69
APPELLATE EXHIBIT 2.”
This case was tried at the same place (Fort Lewis, Washington), on the same date (July 25, 1969), and with the same law officer, as in Bowman.
See Appendix.
Dissenting Opinion
(dissenting) :
I would affirm the decision of the United States Army Court of Military Review. See my dissent in United States v Bowman, 20 USCMA 119, 42 CMR 311 (1970).
