6 M.J. 871 | U.S. Navy-Marine Corps Court of Military Review | 1979
Appellate counsel are in agreement that United States v. Iverson, 5 M.J. 440 (CMA 1978) makes necessary the remand of the record in this case for compliance with United States v. Goode, 1 M.J. 3 (CMA 1975). We add our concurrence. We question, however, the necessity for procedural rules, such as that announced by Goode and enforced by Iverson, which are neither necessary to ensure a fair trial nor required for an effective or complete appellate review. One of the stated purposes of Goode, to minimize delay in completion of appellate review, has all too frequently been subverted by the Goode practice which has evolved. The instant case, to effect compliance with the Goode rule, already has generated substantial “paperwork” with a potential for much more. Such “paperwork,” while time-consuming and counterproductive to expeditious finality of review, adds little or nothing, either to the objective fairness or, to the perception of fairness of the proceedings. Goode is illustrative of mandates for procedures which are deficient in substantive rationale. These new procedures layer on to existing rules and are further complicated in application by yet additional interpretive decisions, as Iverson, the totality of which contributes most generously but unnecessarily to the “JAG papermill” decried in speech and print. See Navy Times, December 18, 1978 at 23, col. 1.
In the case at bar, the appellant pleaded guilty in accordance with the terms of a pretrial agreement. He was convicted and awarded a bad-conduct discharge as well as other ancillary penalties, but no confinement. Although not required by the pretrial agreement, the punitive discharge was suspended by the supervisory authority. Without confinement or discharge, appellant apparently continued to serve in a normal manner aboard the USS DWIGHT D. EISENHOWER (CVN 69). His trial defense counsel was released from active duty prior to completion of the staff judge advocate review and substitute counsel was appointed to receive service of it. The substitute counsel reviewed the staff judge advocate review and made a specific response. Predictably, since the appointment of substitute counsel had antedated Iverson, no evidence was included in the record to show that appellant accepted the substitute counsel or formed an attorney-client relationship with him. (Query, would a refusal, in the present case, by the accused to accept substitute counsel and to enter into an attorney-client relationship forever foreclose court-martial finality?)
There has already been generated below three “pieces of paper” related to compliance with the Goode rule. The briefs of counsel on the “issue” involve two more pieces of paper. Our action remanding the record to the Judge Advocate General is yet another piece of paper, as will be his mandate returning the record to the supervisory level. With appellant at sea and substitute counsel ashore, the possibilities for generating additional pieces of paper before appel
The record is remanded to the Judge Advocate General for return to the supervisory authority. The record should be supplemented to establish the acceptance by appellant of substitute counsel and establishment of an attorney-client relationship if that, in fact, has already occurred. If the requirements of United States v. Iverson have not been met, compliance should be effected and a new action taken by the supervisory authority. The record should be returned to this Court upon completion of the action directed for further review in accordance with Article 66, Uniform Code of Military Justice, 10 U.S.C.A. § 866.
