United States v. Franklin

3 M.J. 785, 1977 CMR LEXIS 780

Opinions

OPINION OF THE COURT

COOK, Senior Judge:

During the course of the post-trial interview appellant asserted “that his defense counsel didn’t care enough or try hard enough in his behalf.” The counsel to whom appellant was referring nevertheless was designated to perform the review of the staff judge advocate’s post-trial review as required by United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975) and he so acted in that regard. For all the record shows, this same counsel was the one assigned to perform the other post-trial duties envisioned by United States v. Palenius, 2 M.J. 86, 92-93 (1977).

While I do not impugn either the integrity or the ability of the trial defense counsel, nor do I find any basis in the record that would lend credence to appellant’s disparaging remark, I am nonetheless of the firm view that appellant had made clear his lack of continued confidence in his trial defense counsel. Under such circumstances, I believe the Government erred in perpetuating defense counsel in that role absent an expression of renewed acceptance by the appellant.

Footnotes

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The action of the convening authority, dated 25 June 1976, is hereby set aside. The record of trial is returned to The Judge Advocate General for a new review and action. For such proceedings the appellant should be accorded the right to counsel in accordance with Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b).

I do not agree that the cases cited by Judge DeFord in his dissent, dealing with situations in which the Government severed an attorney-client relationship, establish the standard or criteria for determining when a client may renounce, or has in fact renounced, such a relationship.