United States v. Sterling

5 M.J. 595

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 28, 1978
• Docket: NCM No. 78 0444
• Status: Published

Opinions

En Banc.

Memorandum Decision on Application of Trial Defense Counsel for Relief from Further Representation

PER CURIAM:

In response to an order of this Court, appellate defense counsel has filed a “Motion For Relief of Trial Defense Counsel From The Responsibility of Post-Trial Representation”, which had been submitted by trial defense counsel on a form request accompanying the record of trial. This is one of many such applications by trial defense counsel that have been submitted to this Court in a variety of ways with differing responses from appellate counsel, whose statement of concurrence or nonconcurrence in the relief has been uniformly solicited by Court Order. This diversity of approaches has prompted en banc consideration in this case of the matter of relief of trial defense counsel in order that a uniform procedure for submission and action upon such applications might be promulgated for the direction and guidance of both trial and appellate defense counsel. The en banc consideration in this case is limited solely to the Motion for Relief of Trial Defense Counsel.

Trial defense counsel desiring relief from the responsibility of further post-trial representation, when appellate representation has been requested by an accused, in a case over which this Court exercises jurisdiction, shall forward his application to appellate defense counsel detailed to represent the appellant in accordance with Article 70, UCMJ, 10 U.S.C. § 870. Requests for relief, when appellate representation has not been requested by an accused, submitted directly to the Court, will ordinarily not be granted unless a substitute counsel has been appointed by appropriate authority.

Trial .defense counsel is neither encouraged nor discouraged from applying for relief from post-trial representation, as explicated in United States v. Palenius, 25 U.S.C.M.A. 222, 54 C.M.R. 549, 2 M.J. 86 (1977). However, the Court does expect that any such application will be the product of a conscious, rational consideration by both trial and appellate defense counsel, supporting a conclusion that further representation by the original defense counsel is no longer necessary in order to adequately protect the interests of an accused.

As a minimum predicate for his relief, in the usual case, trial defense counsel shall assure the Court in his application that appellate defense counsel has been appointed or has been requested by the accused. The Court shall also be informed that trial defense counsel has performed all post-trial duties, including examination of the staff judge advocate’s review, and will continue to do so until actual notification of his relief. Additional specific factors, pertinent to an informed action on the request for relief, shall be included if unusual circumstances exist. Examples of pertinent matters, although certainly not all-inclusive, include counsel’s impending release from active duty, distant geographical separation of counsel and accused, the necessity for appointment of substitute counsel for good cause, and mental or physical conditions which would render effective representation difficult.

Appellate defense counsel shall, in turn, incorporate the application by the trial defense counsel in a motion to this Court pursuant to Rules 8, 18 and 21, Courts of Military Review Rules of Practice and Procedure (1969). The motion filing trial defense counsel’s application for relief shall contain, as a minimum, a representation that appellate defense counsel has commenced his duties and shall state whether appellate defense counsel concurs or does not concur in the relief of trial defense counsel from further representation of appellant. Reasons for nonconcurrence will be given.

Barring unusual circumstances, trial defense counsel will normally be relieved of post-trial responsibilities of representation, upon request, when an appellate defense counsel has been designated and has actually commenced the performance of his duties. The mandate of United States v. Palenius, supra, is satisfied as long as an accused has uninterrupted representation from trial until finality of review under Article 76, UCMJ. It must be paramount in the minds of both trial defense counsel, in submitting his request, and appellate defense counsel, in determining whether to concur in the request, that the interests of their client must be fully protected and in no meaningful way jeopardized by release of the trial defense counsel.

The motion for relief of trial defense counsel, as requested by him and filed in this Court by appellate defense counsel detailed pursuant to Article 70, UCMJ, is hereby granted.

Chief Judge CEDARBURG, Senior Judge DUNBAR, Judges ROOT, BAUM, GREGORY, GLADIS and GRANGER, concur.