The Court specifically pointed out that the conduct of both the staff judge advocate and the president of the court was highly improper. A member of a court should know his decision must be predicated upon information obtained in the courtroom, not outside. . It would be prejudicial for any official policy-express or implied-to be designed to discourage an accused from requesting appellate counsel, United States v. Darring, 9 USCMA 651, 26 CMR 431. No command influence was found where the convening authority (by command line) forwarded "staff judge advocate" instructions to the trial counsel concerning the preparation and trial of a case. The Court pointed out, however, that a case could be visualized where such instructions could so limit the trial counsel as to involve "command control." " Neither was command control found in a directive "deploring" crimes of violence against German nationals. Even though the offense on trial fell in that category, the directive was not directed toward any specific case. Although the directive demanded the reduction of such offenses and threatened violators with severe punishment, it also explained how offenses could be reduced by training men in the interest of good will. The test of command influence was-according to the Court-not the extent of the directive's coverage but whether or not it influenced the court. Here the members denied being influenced. The Court did find influence in United States v. Shepherd, 9 USCMA 90, 25 CMR 352. The convening authority had instituted a weight reduction program. He stated publicly that he would punish all violators", and would brook no interference with his program. The Court, holding that the convening authority's interest was personal rather than official, stated that the members of the court were not "free agents" because they must have been aware of the convening authority's interest in the case. IN ANOTHER CASE, the convening authority ap pointed three lawyer-members to an eight-man special court-martial after the accused had obtained a civilian lawyer who-ostensibly at least-was disliked by the command. The Court of Military Appeals noted the unusual size of the membership for a special court and reasoned that there must have been a definite reason for appointment of three lawyers so that were two to be challenged peremptorily one would remain on the court as ultimately happened. During trial, the president of the court surrendered his functions of presiding over the court to the remaining lawyer on the court. The Court of Military Appeals found that it was reasonable to infer that the convening authority planned such procedure which had the effect of making the court a one-man tribunal; that the entire proceeding smacked of court packing and was prejudicial." THE TRIAL COUNSEL UNDER THE UNIFORM CODE, the trial counsel 52. United States v. Haimson, 5 USCMA 208, 17 CMR 208; United States v. Blau, 5 USCMA 232, 17 CMR 232. 53. United States v. Carter, 9 USCMA 108, 25 CMR 370; cf. United States v. Hurt, 9 USCMA 735, 27 CMR 3. 54. United States v. Sears, 6 USCMA 661, 20 CMR 377. retains the same character as government prosecutor that he has always retained in military justice. Yet in this role, his understandable zeal to win a case must be tempered with a realization of his responsibility for insuring a fair and impartial trial for the accused." As an officer of the court, he is responsible for arranging for all witnesses-both favorable and unfavorable to the government. He may not direct the court's attention to a policy directive suggesting an appropriate punishment, or imply that the convening authority wants the accused to receive a punitive discharge." And in one case the fact that the defense counsel replied that the convening authority had no control over the court did not erase the prejudice." His arguments must be based on matter contained within the record and cannot go beyond the bounds of fair comment." Legal authorities may be presented by the trial counsel only to the extent allowed by the law officer or president (special court-martial) of the court since it is these officials who give the law to the court. As stated in United States v. DeMaris, 8 USCMA 750, 25 CMR 254, it is prejudicial for trial counsel to argue incorrect principles of law. This is especially true when the president or law officer fails to correct the trial counsel. A mere reference by the defense counsel to the SECNAV "thief policy" does not give the trial counsel the right to read the policy statement along with a similar Manual statement. And in United States v. Anderson, 8 USCMA 603, 25 CMR 107, the Court of Military Appeals held that it was prejudicial for the trial counsel to argue sentence aggravation on matters not contained in the record of trial. It is also error for the trial counsel to comment on the failure of the accused to testify on a charge. 59 THE DEFENSE COUNSEL ALTHOUGH MATTERS OF vital importance to an accused-such as correct instructions on the essential elements of the offense charged-have by and large been held not to be the subject of waiver, the Court of Military Appeals has emphatically stated its view that a defense counsel does not do justice to his client or fulfill his duty as an officer of the court when he relies primarily on error on appellate review to protect his client's rights." A defense counsel may waive his 55. United States v. Valencia, 1 USCMA 415, 4 CMR 7. 56. The Court of Military Appeals has held, however, that neither departmental (United States v. Fowle, 7 USCMA 349, 22 CMR 139) nor presidential policies (United States v. Rhinehart, 8 USCMA 402, 24 CMR 212) can be used to influence a courtmartial and that no cautionary instruction can cure them. 57. United States v. Fowle, 7 USCMA 349, 22 CMR 139; United States v. Lackey, 8 USCMA 718, 25 CMR 222. 58. United States v. Day, 2 USCMA 416, 9 CMR 46; United States v. Olson, 7 USCMA 242, 22 CMR 32. 59. United States v. Davis, 8 USCMA 425, 24 CMR 235; United States v. Williams, 8 USCMA 328, 24 CMR 138; and see United States v. Allinder, 9 USCMA 575, 26 CMR 355, where a similar statement was made by the law officer. United States v. Kelly, 7 USCMA 218, 22 CMR 8. But caution should be exercised as to waiver. The fact that defense counsel first raised the point makes no difference when erroneous statement based on an invalid portion of the Manual for Courts-Martial, 1951. 60. United States v. Smith, 2 USCMA 440, 9 CMR 70; United States v. Wolfe, 8 USCMA 247, 24 CMR 57. 67 client's rights at least in general courts-martial-by failing to make a timely objection or moving for appropriate relief for the following: separate trial; " speedy trial; ineligibility of a court member; inadequacy of the pretrial advice; 64 timeliness of the staff legal officer's advice; 65 admission of evidence obtained by search and seizure; admission of evidence generally; admissions of an accused; 68 character evidence; 69 improper argument of trial counsel; " procedural requirements for depositions; " and ambiguous instructions." Even where there was a conscious waiver of the objection or motion, the court has not looked with favor upon the defense counsel's failing to raise the issue." 70 A COURT-MARTIAL the accused is entitled to counsel a lawyer in a general court-martial. One of the most disturbing shortcomings of military law prior to the Uniform Code of Military Justice was inadequate representation of persons accused before courts-martial. This shortcoming was recognized by the drafters of the Code and no other area of military law has been more carefully scrutinized by the Court of Military Appeals. "Adequate counsel" means a fair standard of professional competence. Unqualified counsel may not practice before general courts-martial." Yet, an allegation of "inadequacy of counsel" requires a showing that the proceedings were so tainted by negligence or wrongful motive of counsel as to manifest a complete absence of judicial character. The Court will not condemn counsel for a faulty trial strategy," the showing must be one of obvious incompetency." However, this strict test laid out in Bigger and Soukup has been qualified by later cases. In U.S. v. Horne, 9 USCMA 601, 26 CMR 381, the Court pointed out that although the effectiveness of defense counsel could not be measured solely by the outcome of the trial, a majority of the Court (Judge Latimer dissenting) did expect and demand the highest degree of professional competence from the appointed defense counsel. The Court specifically stated: Under the facts of this case we hold that the defense counsel's conclusion, as set out in his affidavit before this court that 'a defense of entrapment would be frivolous in the extreme,' indicates at least such negligence as to constitute ineffective assistance and therefore a denial of due process. His inactivity at trial buttresses this conclusion. In U.S. v. Kraskouskas, 9 USCMA 607, 26 CMR 387, 1. United States v. Bodenheimer, 2 USCMA 130, 7 CMR 6. 2. United States v. Hounshell, 7 USCMA 3, 21 CMR 129. 3. United States v. Thomas, 3 USCMA 161, 11 CMR 161. 4. United States v. McCormick, 3 USCMA 361, 12 CMR 117. 5. United States v. Allen, 5 USCMA 626, 18 CMR 250. 6. United States v. Dupree, 1 USCMA 665, 5 CMR 93. 7. United States v. Masusock, 1 USCMA 32, 1 CMR 32. & United States v. Fisher, 4 USCMA 152, 15 CMR 152. 9. United States v. Turner, 5 USCMA 445, 18 CMR 69. 0. United States v. Sims, 5 USCMA 115, 17 CMR 115. 1. United States v. Valli, 7 USCMA 70, 21 CMR 186; United States v. Ciarletta, 7 USCMA 606, 23 CMR 70. 2. United States v. Felton, 2 USCMA 630, 10 CMR 128. 1. United States v. Massey, 5 USCMA 514, 18 CMR 138; United States v. Bowers, 3 USCMA 615, 14 CMR 33; United States v. Mundy, 2 USCMA 500, 9 CMR 130. 1. United States v. Kraskouskas, 9 USCMA 607, 26 CMR 387. 5. United States v. Bigger, 2 USCMA 297, 8 CMR 97. 5. United States v. Soukup, 3 USCMA 141, 7 CMR 17. the Court declared that even at his own insistanceand aware of his right to be represented by qualified counsel-an accused cannot elect to be represented by a nonlawyer before a general court-martial. The Court stated: ... It is clear that Congress in enacting the Code sought to eliminate many of the objectionable practices which had existed prior thereto-not the least of which was an accused's representation by one unskilled in the practice of law. . . . The stakes involved in a general court-martial are too high and the price paid for incompetence and lack of professional ability is too dear to permit an accused's life and liberty to rest in the hands of one untrained in the law. . . . IN UNITED STATES V. FAYLOR, 9 USCMA 547, 26 CMR 327, the Court held the defense representation was inadequate where the defense counsel undertook to represent two accused and in mitigation threw the blame on one to secure a light sentence for the other. In a special court-martial case-where the accused is not required to be represented by a lawyer-a certain standard of professional competence is still required by the Court of Military Appeals. For example, in United States v. Gardner, 9 USCMA 48, 25 CMR 310, the Court held that it was prejudicial to the accused for the defense counsel to put him on the stand to judicially admit the entire larceny case, ostensibly to set up a defense of borrowing the money. The prosecution's case had consisted of only a pretrial statement by the accused. Without independent evidence to establish the corpus delicti, the statement alone did not establish a prima facie case of guilt. The accused's judicial admissions [his testimony], however, was clearly sufficient to support the findings of guilty. The Court pointed out the hazards of referring a complicated case to a special court-martial to be handled by counsel untrained in the law: What makes the problem particularly difficult is that we are dealing with both sophisticated aspects of the law and persons who are untrained in the law. Considerable training and experience in the conduct of a trial is necessary to learn that a confession is not ordinarily admissible until independent evidence of the probable commission of the offense has been introduced, Manual for Courts-Martial, United States, 1951, par 140a.... In reading this record of trial, we are convinced that the appointed defense counsel did as well as they could, but their knowledge of the law relating to the case on trial was so deficient as to result in inadequate representation. ... In United States v. McFarlane, 8 USCMA 96, 23 CMR 320, the accused was charged with murder. A plea of not guilty was entered as to the murder charge with defense counsel calling the court's attention to the fact that the Code precluded a plea of guilty to murder. During trial the defense counsel permitted the prosecution to put in its case with little interference or interruption. Defense counsel made no attempt to develop an issue as to the accused's mental capacity to form a specific intent-even though the pretrial investigating officer had recommended a psychiatric examination and that examination had failed to dispose of that issue. At the conclusion of the presentation of the evidence, defense counsel joined the trial counsel in waiving argument. Needless to say, the accused was convicted. He was sentenced to death. Judge Latimer, speaking for the Court observed: ... No doubt the proper administration of justice demands that punishment be reasonably fast and swift; but in capital cases, opportunities to fully explore, prepare, and present possible defenses should not be denied to an accused or his counsel merely because the victim is a foreign national. ... Clearly defense counsel expended no efforts in the case before findings and while it may be that he had no defense, his court conduct, behavior, and manner of dealing with his client's life and liberty should not be a signal that he has defaulted on the merits because his client is in fact guilty." In United States v. Sizemore, 2 USCMA 572, 10 CMR 70, the accused was charged with murder. He was convicted and sentenced to life imprisonment. During trial, the defense counsel requested a ten-minute recess to collect his thoughts before proceeding with his final summation. The request was refused by the law officer and the defense counsel then refused to make a final argument. The Court of Military Appeals found the law officer's action arbitrary and prejudicial to the accused, pointing out that many criminal cases are won for an accused in the course of a final argument. The Court also pointed out, however, that defense counsel's petulance in not making a final argument after his request for continuance was denied did not enhance his client's cause. Other cases holding the trial defense counsel to high professional standards are: United States v. Walker, 3 USCMA 355, 12 CMR 111, a murder case, where individual defense counsel presented a defense theory to the court only to have the appointed defense counsel thereafter admit the accused's guilt and plead for clemency (the Court of Military Appeals found appointed counsel's conduct "grossly negligent"); United States v. Parker, 6 USCMA 75, 19 CMR 201, a murder case with the death sentence where the Court found the proceedings a "hollow ritual", the trial too hasty, and a total lack of tactics and technique usually employed by a defense counsel in a capital case; United States v. McMahan, 6 USCMA 709, 21 CMR 31, a homicide case where once again, according to the Court of Military Appeals, the defense counsel came to trial unprepared, evinced by no voir dire examination of the court members, no opening statement to answer trial counsel's "vigorous" opening statement, and no final argument. From the foregoing cases, it is readily apparent that the Court of Military Appeals requires, and will continue to require, a high professional level of competence from the trial defense counsel-at least where major offenses are involved. That the Court should expect and insist on such representation should not only be self-evident to everyone, but should be insisted upon by all those connected with military justice. A man's life and liberty are his most precious heritages in our society, and it is these heritages which separate our free society from the police state. Nor has appellate review escaped criticism. In 77. For other adequacy of counsel representation cases see United States v. Delauder, 8 USCMA 656, 25 CMR 160; United States v. Allen, 8 USCMA 504, 25 CMR 8; United States v. Friborg, 8 USCMA 515, 25 CMR 19; United States v. Williams, 8 USCMA 552, 25 CMR 56; United States v. Sarlouis, 9 USCMA 148, 25 CMR 410; United States v. Hurt, 9 USCMA 735, 27 CMR 3. United States v. Fisher, 8 USCMA 396, 24 CMR 206 the Court (per curiam) stated: We are, however, disturbed by an apparent tendency at the higher appellate levels to give only "pro forma" attention to the records of trial of inferior courts.... We must insist that the same attention be given to inferior courts-martial records especially when a punitive discharge is imposed as is accorded the record of general courts-martial. . . . It is not a compliment to the system of military justice that the highest appellate court should be called upon by an accused to correct as many errors as appears in this record. THE LAW OFFICER IN KEEPING WITH civilian trials, the principal figure in a military trial is the "Judge”—the law officer. In special courts-martial, it is the president who fulfills the duties of the law officer. Hence many of the following cases have application to him as well as the law officer. Both must direct the trial according to recognized procedures in a judicious manner to insure a fair and impartial trial to both parties.” He must instruct the court as to the applicable law, for he alone is charged with that duty. The court members may not have before them during deliberations the Manual for Courts-Martial, 1951, or any other legal treatise.” As in Federal Court, comments may be made on the evidence, making very sure, however, that the comments are fair and impartial and that the members of the court are finally instructed that they alone are charged with deciding the ultimate issue in the case—the guilt or innocence of the accused.s0 Control of the trial must be exercised to the extent that the record is not cluttered with incompetent, irrelevant, immaterial, or repetitious matters.$1 The law officer (a president) may-and does in a good many instances-cure a trial error by admonishing the court members to disregard improper conduct of counsel or improperly admitted evidence." 63 Like a Federal judge, the law officer (or president) has a wide discretion in his conduct of the trial. But the law officer-perhaps even more so than the Federal judge-must be careful not to abuse the use of discre tion granted to him. Cases have held that he has abused his discretion by arbitrarily denying: (1) a continuance; (2) a motion for a mistrial; (3) a request for a recess to prepare a final argument; (4) favorable character evidence; and (5) a reasonable latitude in cross-examination. The law officer, of course, must not participate with the court members on the findings; discuss the case with members during a recess; refuse to listen to an argument on an interlocutory matter.87 Moreover, he must not assist an officer in 84 86 ΟΙ 78. United States v. Jackson, 3 USCMA 646, 14 CMR 64. 85. United States v. Keith, 1 USCMA 493, 7 CMR 85. 68 preparing charges against an accused to be later tried before him. Nor may a law officer prepare a pretrial advice and afterward participate in the case.s The law officer must make his own decisions. He must not confer with the staff legal officer to discuss prospective rulings and methods to save the prosecution case, and he should not permit himself to be influenced by higher authorities. In United States v. Kennedy, 8 USCMA 251, 24 CMR 61, the law officer was criticized for granting a continuance to the trial counsel solely to permit the prosecution to try and save its case, inasmuch as there was nothing in the record to justify a continuance. In another case, United States v. Ivory, 9 USCMA 516, 26 CMR 296, Chief Judge Quinn pointed out that it was error for the law officer to refuse to rule on a motion to amend because of variance, but instead suggest that the trial counsel consult the convening authority on procedure. The law officer cannot delegate his duties to the convening authority or to anyone else. United States v. Elliott, 8 USCMA 548, 25 CMR 52; United States v. Smith, 6 USCMA 521, 20 CMR 237; United States v. Blankenship, 7 USCMA 328, 22 CMR 118. He also fails in his duties when he refuses to declare a mistrial or instruct to "disregard" after the trial counsel by argument has injected "command control" into the trial. United States v. Lackey, 8 USCMA 718, 25 CMR 222. Members of the Court of Military Appeals have also noted that in a case of flagrant command control (see supra) the law officerbeing a military officer-would also in all probability be influenced. United States v. Shepherd, 9 USCMA 90,25 CMR 352. Intent is always a question of fact; it is never conclusively presumed by law. Yet a homicide instruction that a person usually presumes the natural and probable consequences of his acts is not prejudicial, so long as the law officer explains that presume as used here means no more than a reasonable inference gathered from the facts. On the other hand, if the members of the court are led to believe that by finding the act was committed the intent is automatically proved, prejudice would result," for in military law no conclusive pre 8. United States v. Renton, 8 USCMA 697, 25 CMR 201. 89. United States v. Turner, 9 USCMA 124, 25 CMR 386. 90. United States v. Clay, 1 USCMA 74, 1 CMR 74; United States V. Cromartie, 1 USCMA 551, 4 CMR 143; United States v. Gilbertson, 1 USCMA 465, 4 CMR 57; United States v. Chaput, 2 USCMA 127, 7 CMR 3; United States v. Jett, 5 USCMA 476, 18 CMR 100; United States v. Grossman, 2 USCMA 406, 9 CMR 36. sumption of intent can arise from the commission of an act alone. When intent or motive becomes an issue in a case it must be instructed upon." Two instructions on intent-one of which is not charged-is prejudicial if the evidence is such that reasonable men might be misled into a finding on the alternative intent not charged. Yet an instruction on an alternative intent not charged is not prejudicial if the evidence is compelling as to the intent charged and there is no reasonable possibility that the court could be misled." Intent is a question of fact for the determination of the members of the court-martial based objectively upon all the evidence (and inferences arising therefrom) in the case." Accordingly, it is prejudicial for the law officer to unduly emphasize only one part (prolonged absence) to the exclusion of all others, with regard to inferring an intent to desert. Further, it is prejudicial to instruct in a larceny case that general criminal intent may be presumed from a wrongful act or failure to act and thus whether the failure to act was intentional or negligent." Nor may an intent to deceive be found from the conscious possession of a false passnot susceptible of rightful use as this would permit possession alone to show an intent to deceive." B-Issues Raised During Trial The law officer must instruct on all issues reasonably raised by the evidence. Where a specific finding is required on a particular issue, an instruction-without request is required on that issue. For example, in United States v. Burns, 2 USCMA 400, 9 CMR 30, the defense raised the question of the accused's sanity at the time of the commission of the offense. The law officer failed to clearly and fully instruct as to this issue and the Court of Military Appeals held such failure prejudicial. The Court held that when evidence of insanity is placed in issue, it is incumbent upon the law officer to instruct the court on the issue regardless of whether the instruction is requested. When the accused raises a defense or objection, which should be considered by the members of the court in making a determination of the guilt or innocence of the accused, the issue must be presented to the court through instructions and decided by it pursuant to these instructions. On the other hand, where the issue is purely interlocutory, or where it only raises a question 91. United States v. Miller, 8 USCMA 33, 23 CMR 257. See also United States v. Ball, 8 USCMA 25, 23 CMR 249, as to larceny presumption; United States v. Huff, 7 USCMA 247, 22 CMR 37. See United States v. Cates, 9 USCMA 480, 26 CMR 260, presumed intent in premeditated murder. United States v. Kentucky, 8 USCMA 553, 25 CMR 47, might cure presumption instruction— without explaining it is only inference-by adding intent can be proved by circumstantial evidence. 92. United States v. Wallace, 2 USCMA 595, 10 CMR 93; United States v. Apple, 2 USCMA 592. 93. United States v. Justice, 1 USCMA 643; United States v. Johnson, 1 USCMA 536, 4 CMR 128. 94. United States v. Lee, 8 USCMA 709, 25 CMR 213. 95. United States v. Cothern, 8 USCMA 158, 23 CMR 382; United States v. Soccio, 8 USCMA 477, 24 CMR 287; United States v. Alston, 8 USCMA 490, 24 CMR 300. 96. United States v. Cole, 9 USCMA 155, 25 CMR 417. 97. United States v. Alberico, 7 USCMA 757, 23 CMR 221. C-Lesser Included Offenses The court members must be instructed on all lesser included offenses reasonably raised by the evidence.10 It follows, of course, that if the issue is not raised, there is no duty to instruct.10 If an issue is raised and the court is uninstructed thereon, even if the Court renders a verdict on the lesser included offense, the accused is nonetheless prejudiced.103 The defense, however, may affirmatively waive on an "all or nothing basis" 10 In other words, the defense may request the law officer not to give an instruction on the lesser offense, preferring to go for an outright acquittal or conviction of the major offense. Instructions must be given so that the members of the court-martial are provided with a legal yardstick to which they may fit the evidence in order to reach an intelligent finding.100 105 When the instructions are considered in their entirety, or as a whole, if they are sufficiently clear to be understood-for the court to make an intelligent finding-they will not be considered prejudicial even though one sentence or so may be technically incorrect.108 Yet the instructions as a whole test will not be applied where one correct and one wrong instruction is given on a material issue. They do not cancel out since there is no way of knowing upon which instruction the court relied.107 D-Miscellaneous In United States v. Endsley, 10 USCMA 255, 27 CMR 329, the Court of Military Appeals held that the law officer's advice in open court of the accused's right to testify or remain silent, as recorded in the trial procedure section of the Manual, was not a comment on the accused's failure to testify. However, a majority of the court did recognize that such an instruction does in effect high-light the accused's silence and pointed out that the advice should only be given if the accused has not been informed of his right to remain silent and then only outside the presence and hearing of the court members. In United States v. Polak, 10 USCMA 13, 27 CMR 87, the Court held that the law officer was not required 98. United States v. Ornelas, 2 USCMA 96, 6 CMR 96; United States v. Johnson, 6 USCMA 320, 20 CMR 36. 99. United States v. Amie, 7 USCMA 514, 22 CMR 304. 100. United States v. Hinton, 8 USCMA 39, 23 CMR 263; see also United States v. Powell, 8 USCMA 381, 24 CMR 191. 101. United States v. Richardson, 2 USCMA 88, 6 CMR 88. 106. United States v. Hatchett, 2 USCMA 482, 9 CMR 112. to give a requested defense instruction that "if the members of the court-martial found that any witness testified falsely on any material matter, it should disregard the entire testimony of the witness ("falsus in uno, falsus in omnibus")". The Court pointed out that such a principle of law merely permits the members of the court to draw a permissible inference; that it is not a mandatory rule.108 Recent rulings have held: that if the law officer or president gives definitions on his own motion-absent request he must make sure they are correct; 109 that instructing on the great interest of the accused in the outcome of the case is not a good practice—his interest should not be singled out; 110 that multiplicity ordinarily goes only to the sentence but a law officer or president may instruct the court-martial only to convict of one of the multiple offenses; " that repeated references to proof beyond a reasonable doubt is sufficient even though the instruction was not given in the statutory language; that identifying a particular instruction as presented by the defense is error; 118 that the defense "waives" where no objection is made to an instruction that merely lacks clarity but is otherwise correct; " and, that the defense counsel cannot induce error into the record and then take advantage of it on appeal. 112 REVIEW A-By the Convening Authority 115 Any case tried by general court-martial must be reviewed by the officer exercising general court-martial jurisdiction, and any case tried by a special court-martial which carries a sentence of punitive discharge must be reviewed by a supervisory authority. As a part of this review an accused is entitled to an impartial review by a staff legal officer. This review must not be written by the trial counsel, the law officer, the law officer in a companion case, or a staff legal officer whose pretrial actions in the case were such as to render him biased and prejudiced against the accused. In reviewing the record and advising the convening or supervisory authority as to the recommended action to be taken, the staff legal officer must use the same standards that will be used by the convening authority— whether the guilt of the accused has been established beyond a reasonable doubt. The staff legal officer must not suggest in his review that either he or the convening authority is bound by the court-martial on questions of fact, since both must be independently convinced of the accused's guilt beyond a reasonable doubt. In a 108. But compare United States v. Baldwin, 10 USCMA 193, 27 CMR 267. 109. United States v. Kloh, 10 USCMA 329, 27 CMR 403. 110. United States v. McClary, 10 USCMA 147, 27 CMR 331, but Court found no prejudice. 111. United States v. Littlepace, 10 USCMA 245, 27 CMR 319. 112. United States v. McClary, 10 USCMA 147, 27 CMR 221. 113. United States v. Jones, 10 USCMA 122, 27 CMR 196. 114. United States v. Kloh, 10 USCMA 329, 27 CMR 403. 115. United States v. Clisson, 5 USCMA 277, 17 CMR 277; United States v. Crunk, 4 USCMA 290, 15 CMR 290; United States v. Hill, 6 USCMA 599, 20 CMR 315; United States v. Turner, 7 USCMA 38, 21 CMR 164. 116. United States v. Grice, 8 USCMA 166, 23 CMR 390. |