§ 15. Appellate Counsel

§ 15.5. Appellate defense counsel, generally.

Sentence against the accused was adjudged on 10 May 1954. On 2 August 1954 the board of review's decision was rendered. On 17 August 1954 there was received a statement of the accused dated 11 August 1954 in which he acknowledged he had been informed of his appellate rights in accordance with par 48j (3), MCM, 1951, and in which he requested appellate representation before the board of review. Subsequently, on 25 August 1954, appellate defense counsel filed a motion for reconsideration by the board. Held: Under the cited paragraph of the Manual an accused has ten days from the date sentence is adjudged to forward a request that he be represented by appellate counsel before a board of review. Since the accused's sentence was adjudged on 10 May 1954 he had until 21 May to forward a request for appellate representation and, in practice, the board would have delayed final review of the record for the purpose of appellate representation if his request had been known any time prior to the date of the board's decision. The request of the accused not having been made until three months after the date the sentence was adjudged and nine days after the date of the board's decision and it appearing that the accused was informed of his appellate rights, the right of the accused to have appellate representation before the board of review was waived. NCM 346, Lewis (1954) 17 CMR 465.

II. INITIAL REVIEW AND ACTION

§ 21. Who May Take Initial Action

§ 21.5. Interest in case; accuser.

At the trial of the accused for unauthorized absence extracts from his service record and the Unit Diary of his organization were introduced in evidence. These extracts were authenticated by direction of or by the officer who later acted as reviewing authority. The defense presented evidence to dispute the accuracy of the service record entries and those in the Unit Diary. Other prosecution testimony tended to lessen the effect of this defense evidence, but the strength of the prosecution's case turned on the reliability of the service record and Diary entries. Held: No statute or regulation prohibits a review by a reviewing authority who has been a witness against the accused. In the absence of statutory disqualification, challenge to the competency of the reviewing authority must be based upon the general principles which preserve the integrity of the review. The test to be applied to the reviewing authority who has appeared as a witness against the accused is the same as that applied in determining the disqualification of a convening authority. If from his testimony, it appears that he has a personal connection with the case, he may not act as reviewing authority. On the other hand, if his testimony is of an official or disinterested nature only, he may properly review the record. (Citing 1912 Digest of Opinions of the Judge Advocate General of the Army, A3, p 524; U. S. v. Gordon (No. 258), 1 USCMA 255, 2 CMR 161; ACM 4374, Bergin, 7

CMR 501; U. S. v. Flood (No. 377), 2 USCMA 114, 6 CMR 114.) Under the circumstances the reviewing authority could not exercise the degree of impartiality required for a proper review. The conflict in the evidence was decided by the court against the accused. The reviewing authority, however, has the power to reevaluate the evidence and reach a different conclusion. To do so in this case, the reviewing authority would have to question the validity of his own official act. Faced with this choice, his evaluation of the evidence could hardly be free from personal interest. However, an error which prejudices a substantial right of the accused on the post-trial review does not require, as a matter of law, that the conviction be set aside. The error may be effectively cured at the level of the proceeding at which it occurred. Accordingly, the error herein may be cured by returning the case to the reviewing authority. (See U. S. v. Clisson (No. 4635), 5 USCMA 277, 17 CMR 277; U. S. v. Hightower (No. 4879), 5 USCMA 385, 18 CMR 9.) United States v. McClenny (No. 5492), 5 USCMA 507, 18 CMR 131.

At the trial of the accused entries in his service record were admitted as evidence of unauthorized absences. The entries were signed by the officer who later acted as convening authority. The accuracy of the records was not questioned. In his own testimony the accused admitted he was "over the hill" for the period set out in the specifications. Held: A convening authority does not retroactively become an accuser when he appears at the trial as a witness against the accused. However, consideration may be given to testimony which he gives at the trial to determine whether he had a personal interest in the outcome of the case at the time he convened the court. If his testimony does not show such interest, and there is no other evidence from which such interest may be inferred, his authority to convene the court is unassailable. Similarly, where the convening authority later acts as reviewing authority, the test is whether a reasonable person would impute to the reviewing authority a personal interest in the outcome of the review. In this case, the testimony of the reviewing authority consists solely of official records, the accuracy of which is unquestioned. Moreover, the accused admitted his absence. Hence, there is no basis for imputing a personal interest in the outcome of the review on the part of the reviewing authority. (Distinguishing U. S. v. McClenny (No. 5492), 5 USCMA 507, 18 CMR 131.) United States v. Taylor (No. 5746), 5 USCMA 523, 18 CMR 147.

Agreement of convening authority to subject accused to trial made in order to obtain release from foreign civil authorities as not indicating a personal interest which would disqualify him from reviewing case, see ACM 8708, Buxton and Roy, CRT-M § 4.3.

Convening authority not disqualified from reviewing case by reason of signing service record entries used as evidence where there is no indication of personal interest, see United States v. Long, CRT-M § 4.3.

§ 23. Inferior Courts, Generally

§ 23.5. Sentences not including punitive discharges.

The provisions of UCMJ, Art 65 (c), apply to the review of records of trial by special and summary courts-martial after action has been taken by the convening authority and not before. (Citing UCMJ, Art 65; MCM, 1951, par 94a (2).) Op JAGAF 1954/17. 27 October 1954.

§ 25. Reference to Staff Judge Advocate or Legal Officer

§ 25.1. Generally.

The staff judge advocate personally conducted a rigorous examination of two key witnesses and after he had obtained signed statements from these witnesses the charges were preferred against the accused and the case was referred for trial. In order to obtain information from these witnesses the staff judge advocate negotiated immunity for one of the witnesses and promised to obtain immunity for the other. In his review the staff judge advocate stated that the reason for his action was that the pretrial investigation conducted by the CID was inadequate and did not contain sufficient evidence on which to determine whether or not any offense had been committed, and, because the CID had "closed their books" on the case, it was necessary for someone with knowledge of the law to continue the initial investigation. Held: When a staff judge adovcate personally continues and completes an inadequate initial investigation, under the circumstances of this case, he has so far injected himself, in a partisan capacity, into the investigation and preparation of the case for trial as to generate a substantial risk that he would be unable to render a full, fair and impartial review of the record of trial and becomes an investigating officer within the intent and meaning of UCMJ, Art 6(c), which provides that no person who has acted as investigating officer in any case shall subsequently act as staff judge advocate to any reviewing authority. It is the obvious intendment of this article that in such a situation the staff judge advocate should be disqualified from participating in the review. (See Legal and Legislative Basis, MCM, 1951, par 138; cf. U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75; CM 372982, Eisenhard, 16 CMR 315.)

Held also: The actions of the staff judge advocate did not prevent the accused from having a fair trial. Therefore, his actions did not prejudice the rights of the accused except insofar as the posttrial review was concerned. As the error deprived the accused only of a proper review it may be cured by return of the record for review and initial action by another command. (Citing CM 372982, Eisenhard, 16 CMR 315.) CM 373477, Leo (1954) 17 CMR 387.

The record showed that a Lieutenant Windsor was appointed trial counsel of the court that tried the accused but that prior to the date of the trial he was relieved of his duties as trial counsel and the assistant trial counsel was made trial counsel and performed all the functions of the trial counsel at the trial. Lieutenant Windsor

conducted the post-trial interview of the accused and reviewed the record of trial as the staff judge advocate to the convening authority. At the request of the staff judge advocate of the general courtmartial authority, Lieutenant Windsor executed a certificate that he assumed the duties of acting staff judge advocate, that thereafter he did not act as trial counsel in any case, and that, specifically, he did not act in such capacity in the case at bar. Both the accused and his counsel were furnished with a copy of the certificate and both, in effect, concurred in all the statements therein. Held: Under the circumstances, the certificate of Lieutenant Windsor, which was attached to the record of trial but not contained therein, can be considered by the board of review in determining whether a person who had acted as trial counsel in the case subsequently acted as staff judge advocate, in violation of UCMJ, Art 6(c). (Not following CM 373661, Revera, 16 CMR 377.)

Held also: If there had been any evidence that Lieutenant Windsor had acted in the dual capacity of trial counsel and reviewing officer, such participation would have constituted action prejudicial to the appellate rights of an accused to an impartial review and a violation of UCMJ, Art 6(c). (Citing U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75; CM 372982, Eisenhard, 16 CMR 315; ACM 8270, Bryant, 16 CMR 747.) ACM S-9693, Graham (1954) 17 CMR 889.

At a former trial of the accused one M. testified on behalf of the accused and his testimony was substantially to the same effect as that of the accused. Later, M. was tried and convicted for giving perjured testimony. Contemporaneously, charges were filed against the accused for having suborned M. and for falsely testifying himself. A certain captain acted as trial counsel in the perjury prosecution of M. He was also appointed trial counsel of the court before which the accused was brought to trial but he did not serve as such. However, after the trial he conducted the post-trial review and prepared the formal staff judge advocate's review. The review was signed by him as assistant staff judge advocate. Following his signature is a statement by the acting staff judge advocate which stated that he had read the record of trial and concurred. Held: Under the provisions of UCMJ, Art 6(c), the captain was disqualified from conducting the post-trial review. As used in Art 6(c), prohibiting the person who acted as trial counsel from later acting as staff judge advocate in the same case, the phrase "same case" is to be given the same liberal construction that it is given under UCMJ, Art 27(a). Under a liberal interpretation, the case against M. and the proceedings against the accused constitute the "same case" for the purposes of Art 6(c) since M. and the accused were charged with giving false testimony at the same judicial proceedings and with regard to the same material facts and in essence the subornation charge is inseparable from the perjury charge. Also, there is no doubt that the captain having been instrumental in convicting M. would be personally convinced of the accused's guilt and such an opinion manifestly affects the impartiality of the review. One consequence of it is to deny the accused the benefit of any

doubt regarding the correctness of rulings by the law officer. Another consequence is that there is a distinct risk that the sentence recommendation would reflect unrecorded prejudices formed during the reviewer's prosecution of the co-accused. (Citing U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75; U. S. v. Clisson (No. 4635), 5 USCMA 277, 17 CMR 277; U. S. v. Stringer (Nos. 3033, 3304, 3339, 3361), 4 USCMA 494, 16 CMR 68; U. S. v. Best (No. 4361), 4 USCMA 581, 16 CMR 155; ACM 4612, Homan, 6 CMR 504; U. S. v. Floyd (No. 745), 2 USCMA 183, 7 CMR 59; U. S. v. Bound (No. 201), 1 USCMA 224, 2 CMR 130.) There was a violation of UCMJ, Art 6(c), notwithstanding the fact that the review was concurred in by the acting staff judge advocate who had no previous connection with either case. (Citing U. S. v. Crunk (No. 3653), 4 USCMA 290, 15 CMR 290.) Since the accused admitted his guilt of the perjury charge and conceded his knowledge of the scheme to induce M. to commit perjury, no useful purpose would be served by ordering a rehearing. Therefore, the error in the instant case should be corrected by referring the record to a qualified staff judge advocate who has had no previous connection with the case and who will conduct the review of the record with impartiality. [Latimer, J., dissenting, on the ground that the record was such that any reviewing authority with or without interest would reach the same conclusion and thus referring the case to a disinterested party was unnecessary.] United States v. Hightower (No. 4879) 5 USCMA 385, 18 CMR 9, reversing ACM 8148, Hightower, 14 CMR 908.

The report of a post-trial interview with the accused was signed by the officer who had acted as law officer at the trial. Under the remarks section of the document it was stated that the accused had stated he did not like the Army, did not desire restoration or rehabilitation and that if restored to duty he would go AWOL again. It was recommended that the sentence adjudged be approved and ordered executed. The Army staff judge advocate's review to the commanding general showed that it was prepared by an assistant staff judge advocate, concurred in by the Chief of Military Justice Division, Judge Advocate Section, Fifth Army, and by the Army staff judge advocate. The officer who had acted as law officer was not one of these officers. This review incorporated the substance of the accused's statement and added that in view of his attitude, his poor character and efficiency ratings and his record of previous convictions for absences without proper authority it was clear that he was of no future value to the service and his retention was not warranted. Clemency was not recommended. Held: It was improper for the law officer to conduct the post-trial interview. However, under the circumstances of the instant case, such action did not constitute participation in the review of the Army staff judge advocate in the sense proscribed by UCMJ, Art 6(c), and hence did not prejudice the substantial rights of the accused. (Distinguishing U. S. v. Crunk (No. 3653), 4 USCMA 290, 15 CMR 290; U. S. v. Gordon (No. 258), 1 USCMA 255, 2 CMR 161, and U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75.) CM 377365, Polk (1954) 17 CMR 451.