20 C.M.A. 290 | United States Court of Military Appeals | 1971
Lead Opinion
Opinion of the Court
In this case, the military judge, in his efforts to comply with the requirements laid down by this Court in United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969), asked defense counsel whether he had “explained to the accused his rights concerning counsel.” Upon receiving an affirmative reply, he requested counsel to state the nature of this advice. Thereafter, the military judge did not personally question the accused, as required by Donohew, relative to his knowledge of “each of the elements of Article 38(b), as well as his understanding of his entitlement thereunder.” Donohew, supra, at page 152. His failure to do so is reversible error. United States v Bowman, 20 USCMA 119, 42 CMR 311 (1970); United States v Goodin, 20 USCMA 160, 42 CMR 352 (1970);
We find no fault with the extent of the advice given the accused by defense counsel and note that it was similar in content to that contained on the written form utilized for this purpose in Bowman, Goodin, and Mosley, all supra. But as we said of the form 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 Navy. A rehearing may be ordered.
Dissenting Opinion
(dissenting):
I would affirm for the reasons set out in my dissent in United States v Bowman, 20 USCMA 119, 42 CMR 311 (1970), and United States v Carter, 20 USCMA 146, 42 CMR 338 (1970).
