The Court of Military Appeals and the Defense Counsel

• Author: by Cabell F. Cobbs
• Pages: 04

I. INTRODUCTION

On May 5, 1950, President Harry S. Truman approved the Uniform Code of Military Justiee.1 thereby introducing for the first time in the history of American military law the concept ofgeneral courts-martial fully staffed by legally trained counsel and presided over by the military counterpart of a United States Judge.* Prior to the enactment of the Code, Army and Air Force accused were entitled to representation by attorneys only on the basis of availability or when the Government was so represented.' The Articles for the Government of the Navy made no provision for an attorney for the defense.' Only the Anny and Air Force provided a law member for their general courts-martial, and this functionaw combined the tasks of judge and juror.'

It is with the role of the newly furnished lawyer for the defenee that this study is concerned-more particularly with the manner with which the United States Court of Military Appeals has reacted to his performance of duty. Unfortunately, as a result of the very nature of the appellate process, the Court's views must be generally found in cues which deal with those officer-attorneys who have failed to measure up to a prescribed standard. The vast majority of defense counsel apparently meet the testa laid down by the Court thus far, but proof of their devotion to the cause of their clients is lost both in acquittals and, more frequently,

'The opinions and conclusions presented herein are those of the author and do not ne~es~arilyrepresent the views of The Judge Advoeate General's SIwl or any other governmental agency.

** Commissioner, United States Court of Military Appeals; LL.B., Uniseriity of Richmond, 1949; Member. Bar of Virginia; Graduate, 4th Advanced Class. 1956; Army judge advocate omeer, 195&1959.

I10 U.S.C. 58 801-938 (1958).1 For an excellent diacuaiian of the law ofleer and the part played by the Court of Military Appeala in strenptheninp his role in the military justice process, aee Miller, W b Mods Tha Law O&W A Fedsrd Judge!, Mil L Res.,March, 1959, p. 69.

8 Article of War 11. as amended, 62 Stat. 629 (194S),&Artidea for the Government of the Naw, Article 39. Rev. Stat. 5 1624(18'76) i Nwd Covrb and Boardi B 384 (1937).

6Artieleof War8,628t.t.629 (1948).1100 dllOB 111

in the denial of appeals.' Nevertheless, it is suggested that the increasingly liberal approach of the Court to the problem of adequate repreaentation demonatrates a marked dissatisfaction with the behavior of counsel in general.

11. THE DEVELOPMENT OF THE JUDICIAL CONCEPT OF ADEQUACY

1. THE RULE OF UNITED STATES V. HUNTER

   It is ahays extremely difficult for any appellate body to set down a standard by which an answer to the question whether an attorney has adequately represented his client may be properly reached. Most courts tend to speak on the subject in generalities. and, in its initial consideration of the problem, the Court did little more than adopt the measure applied in the Federal appellate system. Thus, in United States v. Hunter? it declared:

   , , , Undoubtedly, it would be desirable to furnish every accused vith Bmature and experienced trisi lawyer but that is presently an impmibility. The best that e m be done 18 to assure appointment ai officers who are reasonably well qualified to protect their mbstantial rights.

   "After appointment of counsel, 8s required by the Code, an seeused, if he contends his rights have not been fully protected, m u t rrasonobly show that the moeeedinga bu which he wae oamiotad wen 80 LwOneDUll

   .~as to tonstilute o diculous and empty gestwe, or weia 80 tainted with negligenoe 01 wangful motwe8 on the pait of hie eaunasl ail to nurnijeat s ompldte absmcs at jdioial chomotw. . . .I [Emphasis riupplid.1

   In the Hunter case, the accused made a very generalized complaint concerning the quality of the representation adorded him by his appointed defense counsel and the individual nonlawyer

   I For example during the period 1861.1859 the Court of Militsn Appeals reviewed only 1; 428 eases and ihsved apin~o& in only 1613 of this numbor. k r i n g the same'peiiod the amed ierviees tried approximately 82,297 gen-eral courts-martial. s& the Y B ~ ~ O Y P

   Annuai Reports of the United Statel

   Court of Military Appeals and The Judge Advocates General of the Armed Forces.

   7 2 USCMA 31, 6 CMR 37 (1852). The opinion was by Judge Latimer, Chief Judge Qvinn and Judge Brosman eoncurring.

   81d. at 41, S CMR at 41. C~mpms the Court's language with the similar declaration in Diggi 7. Welch, 148 F2d 667 (D.C.

   Cir. 1845). The Court had earlier pomted out the duty of all eourt-martlal officials ". , . to protect zeal. ounly the right of the aecuned to counsel." United Staten V. Evans, 1 USCMA 541 544 4 CMR 133, 136 (1862). It had also warned that use of palpably in&p&ced counsel might result in Iefuasl to apply the doctrine of waiver. United States V. Dupree, 1 USCMA 665. 5 CMR 83 (1862).

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   COMA AND DEFENSE COUNSEL

   whom he had selected to aid him.8 He did not point out any course of conduct alternative to that followed by his representatives at the trial, nor could he demonstrate the manner in which he was prejudiced by the tactics applied on his behalf. The Court rejected the contention that the case should be tried de nwo on appeal and that inadequacy of representation might be established simply by the argument that other things should have been done. Of this proposition, Judge Latimer cogently remarked:

   , , , I t is all too easy for a, losing litigant to complain 0" appeal of too few conferences, failure to ea11 ivitnessei, lack of eronn-examination and ather items too numemua to mention. But usuallg, 88 in this case, they fail to Suggent how or in what way they have been prejudiced. It hardly need be said that if there m e no facts or theories to develop, conferences are of little help; if there are no witneiw favorable ta the accused, eoun~el cannot be criticized for failure to call [them]; and too much CrOBS-exBminatlm is aften more damaging than too little.lo

   The measure set forth by the Court in United States Y. Hunter was applied without modification far a number of years. It did not, however, result in the rejection in every case of accused's attack upon his counsel. During the period 1952-1957, the Court granted review and published opinions in seven cases involving the proposition that eounael was ineffective." Four of these were reversed for denial of effective assistance of counsel, while three were affirmed Essentially, however, the Hunter rule was followed, and the opinions are chiefiy important for the circumstances found to establish the allegation of incompetency in the particular trial.

   Thus, in United States v. Soukoup,l the negative argument that defense counsel could have taken many more steps on behalf of his client was rejected on the basis that there were too many factors at a trial, which were not contained in the written transcript, to permit an appellate body to retry the case at its level. And in United...