United States v. Elkins

8 C.M.A. 611, 8 USCMA 611, 25 C.M.R. 115, 1958 CMA LEXIS 719, 1958 WL 3087

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

Originally, we denied review in this case. Thereafter, the accused petitioned for reconsideration on the ground that there was an issue as to the adequacy of his representation by appointed defense counsel which was similar to that in United States v Allen, 8 USCMA 504, 25 CMR 8, which was then pending before the Court. The Government did not oppose a grant of review. Nevertheless, it submitted an affidavit by the appointed defense counsel in regard to the merits of the accused’s claim of error.

In the affidavit the appointed defense counsel says, in part, that he discussed the question of mitigation evidence with the accused. He represents that the accused informed him that “there was nothing which he desired to present to the court” and that “he had no desire to remain in the service”; as a result, it was determined that “no argument” or evidence would be presented. We granted the petition without requiring a reply from the accused to the aver-ments in his counsel’s affidavit. The accused, therefore, has not had an opportunity to meet fully the Government’s new matter. Since this matter requires further inquiry, we believe it better to remand the case to the board of review for further proceedings.

We return the record of trial to The Judge Advocate General for submission to the board of review to hear and determine the matter in dispute in accordance with our Allen opinion.

Judge FERGUSON concurs.