United States v. Iverson

5 M.J. 440, 1978 CMA LEXIS 9756

• Court: United States Court of Military Appeals
• Decided: October 16, 1978
• Docket: No. 31,962; CM 433471
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

The appellant was convicted by a general court-martial of possession and sale of marijuana and of possession of an unregistered firearm, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. He was sentenced to a bad-conduct discharge, confinement for 8 months, forfeiture of $200 pay per month for 8 months and reduction to the lowest enlisted grade. The United States Army Court of Military Review has affirmed.¹ We granted review to consider the appellant’s contention that he was prejudiced by the erroneous failure of the Government to serve a copy of the post-trial review upon his trial defense attorney.

The court-martial that convicted the appellant was convened by the Commanding General of Fort Carson, Colorado, who also was the Commander of the 4th Infantry Division (Mechanized). That convening authority and his staff judge advocate were disqualified from conducting the post-trial review and action. Those duties were performed by the Staff Judge Advocate and Commanding General of the 1st Infantry Division and Fort Riley, Kansas. After the trial, the appellant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas. His trial defense attorney remained assigned to Fort Carson and apparently has had no further contact with the appellant. The post-trial review was delivered to another attorney, the chief defense counsel at Fort Riley, on June 6, 1975. That attorney had no prior connection with the case and the record does not disclose that he communicated with either the appellant or the original trial defense attorney after he received the post-trial review. On June 11,1975, he advised the new convening authority that he had determined that there was nothing to submit in explanation or as rebuttal.²

This Court has stated that the post-trial review of the staff judge advocate must “be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment.” United States v. Goode, 1 M.J. 3, 6 (C.M.A.1975). The purpose of imposing this obligation was “to eliminate delays encountered in claims of error in post-trial reviews and the exhaustion of appellate resources when such errors could easily and expeditiously be resolved prior to the convening and supervisory authorities’ actions.” United States v. Hill, 3 M.J. 295, 296 (C.M.A.1977).

In the majority opinion disposing of the appellant’s case below, the Court of Military Review — after noting that no attorney-client relationship had been created between the appellant and his substituted defense counsel, either by way of the appellant’s consenting to counsel’s representing him or even to the extent of communications between the two of them — held:³

Although a complete relationship must be developed for representation during the trial itself, we do not believe that the Court of Military Appeals intended such a relationship to be a condition precedent to compliance with Goode.

Cf. United States v. Miller, 2 M.J. 767 (A.C.M.R.1976), where another panel of that court determined that Goode did contemplate an attorney-client relationship with trial defense counsel which cannot be severed without good reason — which does not include routine transfer of duty station assignments — and that, assuming the existence of such a justification, substitution of counsel normally can occur only with the accused’s consent. (Judge DeFord dissented, agreeing with the Iverson panel that Goode can be satisfied by “something less than the normal attorney-client relationship required during trial and pretrial proceedings.” Id. at 772.)

We are satisfied that the attorney-client relationship must exist for anyone to function as “counsel for the accused.” United States v. Goode, supra at 6. Because this attorney is called upon to act in the accused’s behalf with respect to the review and, indeed, possesses authority to waive most errors in the review,⁴ there can be no doubt that he is commissioned as an advocate, not as an amicus curiae. See Anders v. California, 386 U.S. 738, 87 S.Ct. , 18 L.Ed.2d 493 (1967). It must be remembered that it is the accused’s interests which are at stake in the review, and it is the accused’s welfare which will be affected by an appellate conclusion that “counsel for the accused” effectively waived a complaint with the review by failing to comment thereon. For this to be the case, the agency relationship of attorney-client ⁵ must have been formed.

Additionally, it would seem logical to demand that the attorney who does perform the Goode task normally be the trial defense counsel. The attorney who so acts is required to have a thorough grasp of the facts and the law involved in an accused’s trial and to be capable of digesting the post-trial review in light of those facts and law so as to file a meaningful response to the review, if any there be, within 5 days of having been served. By placing the burden on counsel to perform such a duty within this short period, we believe the Court in Goode contemplated that, normally, the trial defense counsel would fill this role.

In United States v. Palenius, 2 M.J. 86 (C.M.A.1977), we noted that the attorney-client relationship between the accused and the attorney who represented him at trial continues after entry of the judgment in order to assure that the accused’s rights and protections will be afforded him without lapse of representation pending entry of his case into the appellate system. We outlined the minimum duties which trial defense attorneys should perform on behalf of their convicted clients:

[The trial defense counsel] should take action on behalf of his client as necessary during the intermediate reviews contemplated by the Uniform Code of Military Justice. This includes the reviewing of the staff judge advocate’s report with his client and the presentation of pleas to the convening authority for modification or reduction of sentence if in his or his client’s judgment such is appropriate or desirable.

[T]he trial defense attorney can and should remain attentive to the needs of his client by rendering him such advice and assistance as the exigencies of the particular case might require.

The trial defense attorney can with honor and should maintain the attorney-client relationship with his client subsequent to the finding of guilty while performing the duties we set forth today until substitute trial counsel or appellate counsel have been properly designated and have commenced the performance of their duties, thus rendering further representation by the original trial defense attorney or those properly substituted in his place unnecessary.

Id. at 93 (footnote omitted).

We also set forth the procedure by which the original trial defense attorney can be relieved of the duty of further representation of the convicted accused. However, the appellant was convicted prior to our decision in Palenius. Nevertheless, this Court had previously addressed arbitrary interferences with the relationship between the accused and his attorney. In United States v. Murray, 20 U.S.C.M.A. 61, 62, 42 C.M.R. 253, 254 (1970), we stated that “[o]nce entered into, the relationship between the accused and his appointed military counsel may not be severed or materially altered for administrative convenience. United States v. Tellier, 13 U.S.C.M.A. 323, 32 C.M.R. 323 (1962).” This includes “a routine change of assignment.” Id. While this Court’s precedent does recognize that the existence of “good cause" will justify termination of the relationship, United States v. Eason, 21 U.S.C.M.A. 335, 339, 45 C.M.R. 109, 113 (1972), Eason itself cautioned that “a financial, logistical, and administrative burden on the Government” does not rise to the level of “good cause.” Id. at 340, 45 C.M.R. at 114. Absent a truly extraordinary circumstance rendering virtually impossible the continuation of the established relationship,⁶ only the accused may terminate the existing affiliation with his trial defense counsel⁷ prior to the case reaching the appellate level.⁸

Whenever such an unusual occasion does arise, it is vital that certain prerequisites be followed in order that a proper relationship be created between the accused and his new attorney.⁹ The Court’s opinion in United States v. Miller, 7 U.S.C.M.A. 23, 28, 21 C.M.R. 149, 154 (1956), is instructive in this regard:

The relationship between an attorney and client is personal and privileged. It involves confidence, trust and cooperation. Where counsel is appointed to represent one charged with an offense, the offender is entitled to protest, if the lawyer selected is objectionable to him. In the military system, if an accused has just cause for complaint against his defender, such as hostility or incompetency, he is entitled to request the appointment of other counsel. Furthermore, he is entitled to reject the services of appointed officers and employ, at his own expense, the services of civilian counsel. It may be that where an accused does not retain the services of civilian counsel, or prevail upon individual counsel to undertake his defense, or object with good cause to the representation by counsel appointed for him, he is deemed to have concurred in the appointment. However, that notion of implied consent or acquiescence is not peculiar to the military system, but is operative in every system which relies, in whole or in part, on public defenders or court-appointed counsel.

Here we have no way of knowing whether accused was informed that he was being represented by counsel chosen by the convening authority. He could not consent if he did not know. Apparently the military service decided he had no voice in the matter as they chose to ignore him personally. [This was improper.]

Shortly thereafter, the Court re-emphasized that acceptance by the accused is an absolute necessity to the establishment of an attorney-client relationship. United States v. Brady, 8 U.S.C.M.A. 456, 460, 24 C.M.R. 266, 270 (1957). Indeed, one cannot act as an agent, see United States v. Palenius, supra, without the knowledge and consent of the principal.¹⁰

We agree with observations made by the United States Army Court of Military Review in United States v. Miller, 2 M.J. 767, 768 (A.C.M.R.1976) (footnotes omitted):

The right of a defendant to be represented by counsel is basic to the military justice system. “The right to services of counsel is substantial and extends both to the pretrial and the trial proceedings.” Further, “a defense counsel’s duty to represent an accused does not end with the court-martial findings.” In point of fact, paragraph 48k, MCM 1969 (Rev.), specifies five separate tasks under the heading “Counsel for the Accused — Duties After Trial”

It was precisely for the purpose of enabling the defense counsel to more effectively perform some of these post-trial duties that two of the precursor cases to United States v. Goode, supra, strongly recommended the adoption of the practice of serving a copy of the post-trial review on counsel for the accused. The court’s opinion in United States v. Goode, supra, has added another post-trial task for the defense counsel to perform, that is, to comment upon the post-trial review.

There is no indication that the appellant’s trial defense counsel was not available to continue to represent his client. See United States v. Palenius, supra. The administrative inconvenience of having to send the review a short distance away to another installation does not operate as an adequate factor to terminate an established attorney-client relationship. United States v. Eason, supra; United States v. Murray, supra. Under these circumstances, because such relationship improperly was interrupted by the Government, the purposes of Goode were not served.

It remains to be considered what is the appropriate remedy for such a breach. The appellant urges that dismissal ought to occur, claiming that the mandate of Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), cannot be met with regard to any presently ordered new review and action. On the other hand, the Government suggests that, as no error in the review has yet to be identified by the appellant, the Goode error under these circumstances ought to be tested for prejudice and, there being none, the case may be affirmed. Neither of these alternatives strikes us as being quite appropriate.

This case is no different from any other in which, for some reason, a new convening authority’s action must be ordered. See United States v. Chavez-Rey, 1 M.J. 34 (C.M.A.1975). As long as the original action was taken within the 90 days prescribed by Dunlap, it never has been concluded that dismissal must follow because the subsequently ordered action did not, and we decline to impose that sanction in this case.

On the other hand, we do not believe that a failure to permit trial defense counsel to fulfill his or her role under Goode and Palenius can be dismissed as nonprejudicial. In United States v. Hill, supra, we declined to test for prejudice when no counsel had had the opportunity to respond to the staff judge advocate’s review. Our solution here will be the same which we there employed. The integrity of this stage of the development of an accused’s case depends upon the trial defense counsel’s being permitted to perform as anticipated.

The decision of the United States Army Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to The Judge Advocate General of the Army for remand for a new review and action, the latter to be taken after compliance with the mandate of United States v. Goode, supra, as interpreted herein.

1 . United States v. Iverson, 2 M.J. 489 (A.C.M.R.1975).

2 . The Fort Riley defense attorney subsequently filed an affidavit with the Court of Military Review in which he stated that he was asked to act as defense counsel for the appellant for the purpose of examining the record of trial and the review of the staff judge advocate and that he did perform those duties. He also stated that he had no earlier connection with the case, had no communication with the appellant, had no knowledge that any convening authority had detailed him to act as appellant’s counsel, and had never been specifically requested as counsel for the appellant.

3 . United States v. Iverson, supra, at 491.

4 . United States v. Morrison, 3 M.J. 408 (C.M.A.1977); United States v. Barnes, 3 M.J. 406 (C.M.A.1977).

5 . See United States v. Larneard, 3 M.J. 76, 81 (C.M.A.1977).

6 . Nothing in this opinion is meant to prohibit the appointment of local defense counsel to coordinate with a trial defense counsel who may be many miles away. Our concern is with the preservation of an existing attorney-client relationship and with the attorney in that relationship being permitted to fully execute his continuing professional responsibilities, not with restricting administrative procedures which might be deemed appropriate in a given case to facilitate that continued representation.

7 . See United States v. Andrews, 21 U.S.C.M.A. 165, 44 C.M.R. 219 (1972).

8 . Article 70(c), Uniform Code of Military Justice, 10 U.S.C. § 870(c); see United States v. Palenius, 2 M.J. 86 (C.M.A.1977).

9 . Once a proper relationship has been established with the accused, it is expected that, because of the practical difficulties noted earlier confronting new counsel entering a case at this stage, such counsel would take immediate steps to discuss the substance of the case with his client and, if possible, with trial defense counsel.

10 . Analogy to the appellate defense divisions of the various services as an argument to the contrary, as was made by the court below, see United States v. Iverson, supra, is inapposite, for those normally become involved in the case upon the request of the appellant. Article 70(c), supra. Whether he knows the name of the specific counsel detailed to represent him is not relevant, for he does know that his trial defense counsel no longer represents him for purposes of the appeal and that an appellate counsel at his request now does so. Effectively, then, he has consented to his newly appointed counsel.