United States v. Hubbard

20 C.M.A. 482, 20 USCMA 482, 43 C.M.R. 322, 1971 CMA LEXIS 685, 1971 WL 12786

• Court: United States Court of Military Appeals
• Decided: April 9, 1971
• Docket: No. 23,517
• Status: Published

Opinions

Opinion of the Court

DARDEN, Judge:

The trial counsel in this case was the deputy staff judge advocate. In that position he was the immediate superior officer of the trial defense counsel and the assistant defense counsel, and he endorsed their efficiency reports. Whether such a relationship inherently deprived the appellant of due process is the question that engages the Court’s attention.

A general court-martial at Fort Jackson, South Carolina, tried the appellant for unpremeditated murder and an unauthorized absence. It convicted him of voluntary manslaughter and of an absence of a period less than that charged. His sentence — a dishonorable discharge, total forfeitures, confinement at hard labor for five years, and reduction to the lowest enlisted grade — remains intact.

This trial was completed in three days. The record shows that Hubbard was arraigned and that he entered his plea on August 6, 1969. The defense was then granted a continuance until August 19, 1969. The court reconvened on that date and continued through the following day.

Opposing appellate counsel agree that the trial counsel, a major, was the “indorser for efficiency report purposes” of trial defense and assistant defense counsel, both captains, for the rating period April 22 to August 16, 1969. Afterward, he continued to rate the defense counsel but not the assistant counsel, who had departed on a permanent change of station shortly after trial. The trial counsel had reported to Fort Jackson on May 26, 1969, and then had gone on leave. He returned to duty “on or about 16 June 1969 and assumed the position of Deputy Staff Judge Advocate at that time.”

The appellate defense attack on this relationship expressly disavows any insinuation of impropriety in action or motive in the conduct of this case. The appellate defense counsel does declare, however, that the relationship of trial counsel in this case has such an intrinsic appearance of evil as to amount to a deprivation of due process. This argument continues that the organizational arrangement harbors a “subtle coercive phenomena,” that prevents recognition of specific prejudice. A rehearing is required, according to the appellate defense counsel, since Hubbard could not have made a knowing and intelligent election to proceed with assigned counsel when he was unaware that his counsel was a subordinate of the trial counsel.

Two different boards of review have considered the same issue this case presents. In United States v Blackburn, 31 CMR 340, 343 (ABR 1961), the decision viewed an arrangement of this type with disfavor and recommended that it be avoided “where possible.” That opinion found no prejudice, because the record clearly revealed an “adequate unhampered defense.” In United States v Moore, 35 CMR 683 (CGBR 1964), the decision was that an able and enthusiastic defense countered the possibility that a defense counsel might be less than vigorous and effective as a result of the trial counsel’s status.

In its opinions in the few cases having an issue comparable to the one in the instant case, this Court has demonstrated a wariness toward relationships that could affect the integrity of a trial. In one of those cases, United States v Deain, 5 USCMA 44, 17 CMR 44 (1954), a rear admiral assigned by the Bureau of Personnel as a permanent court member acted as a president of a general court-martial. He prepared the fitness report of permanent court members, his rating being based primarily upon their court performance. The danger of infringement on other court members’ right to act freely, brought about by the unusual nature of this type of fitness report, was one of several reasons for reversing that accused’s conviction.

In United States v Hayes, 7 USCMA 477, 479, 22 CMR 267 (1957), a conviction was sustained, although the trial counsel, as the staff judge advocate, was the defense counsel’s superior and rating officer. Since civilian counsel conducted Hayes’s defense, the Court found no improper influence. The opinion did state, however, that:

“. . . [I]n certain circumstances the official relationship between the two [military counsel] might adversely affect the freedom of action of the subordinate and seriously circumscribe his professional judgment.”

This observation follows the views expressed in Blackburn and Moore, both supra.

Neither the Uniform Code of Military Justice nor the Manual for Courts-Martial, United States, 1969 (Revised edition), prohibits the relationship that is the issue in this case. Congress has recently considered the safeguards it considers appropriate as a result of the defense counsel’s being a member of a military organization, in which status his performance must be evaluated for the purpose of his advancement or elimination from service. The Military Justice Act of 1968 added this subsection to Article 37, Uniform Code of Military Justice, 10 USC § 837:

“(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial.”

A proposal to enhance the independence of defense counsel by transferring their supervision from a staff judge advocate of a convening authority to the Judge Advocate General of the service concerned is pending before the current Congress.¹ A similar provision in existing law insulates military judges of general courts-martial from administrative control by convening authorities.²

The staff judge advocate section of some military organizations may be so small that the staff judge advocate or the deputy staff judge advocate must participate in the trial of cases in which the opposing counsel is a person the judge advocate or deputy judge advocate must rate. An arrangement in which an accused could not be harmed would have the superior officer always serving as defense counsel. If this is not practical in some situations, such as where the staff judge advocate is trying a case, the judge advocate or deputy judge advocate could refrain from rating the persons against whom he had been trying cases. We are confident that some such improvisation could avoid the doubts or suspicion that can spring from the rating officer’s functioning as trial counsel against a defense counsel he must report on.

Despite our awareness that a relationship of the kind this case presents should be closely scrutinized for possible prejudice to an accused, we decline to hold that such a relationship is prejudicial per se.

No basis exists for questioning the adequacy of defense counsel’s performance. Cf. United States v Kitchens, 12 USCMA 589, 31 CMR 175 (1961). That Hubbard’s counsel performed creditably is conceded. Despite defense counsel’s efforts the court convicted Hubbard, but for offenses less serious than those with which he was charged. In these circumstances, we are convinced the appellant’s defense counsel was unrestrained in his actions and that the appellant’s choice of counsel was un-compromised. Accordingly, we affirm the decision of the Court of Military Review.

Chief Judge QUINN concurs.

¹

S. 1127, 92d Congress, First Session (1971).

2 “(c) The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail by the convening authority, and, unless the court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only when he is assigned and directly responsible to the Judge Advocate General, or his designee, of the armed force of which the military judge is a member and may perform duties of a judicial or non judicial nature other than those relating to his primary duty as a military judge of a general court-martial when such duties are assigned to him by or with the approval of that Judge Advocate General or his designee.” [Article 26, Uniform Code of Military Justice, 10 USC § 826.]