Relationship Between Appointed and Individual Defense CounselLieutenant Commander James D. Tilder If the accused does decide to conduct his own defense, dm? he have mil selection There are IIO deha,? rules that an accused is entitled to conduct his ow1 defense OP to be represented hp connsd. hur not to R hybrid of hoth rights? I siiiiilRr rule sliould bs applied in courts-murtial IO armd 111the appointed defense coiinsel in th8 difficnlt position of being ha high dsgree of professional responshility6 \~lnlc under rhe control of RII accused who lias elerted to rake complete ch:irpe of his CRBP. l3 .iDl7SI.Y(; THE BCCCSED The first iiieeting betmen Rppoinred defense COU~ISP~ mid the ucuell~- OCC~IS shartlr after charges IIRW been referred IO \yhich time eound is required to ndrise accused of 111s right to .- In addition to advising accused of this riglir. catinsel 15 under an obligation to adrise...

• Author: Lieutenant Commander James D. Tilder
• Pages: 02

JLILTOX

7. GERSXEXSON*'

   1. ISTRODUCTIOX A. GE.VERAL-REVIEW OF OEINISAL COVl'ICTIOSS

      In fsderal civilinn cases, revier of the verdict and sentence is confined to the judicial branch, via the proees~es of direct appeal and of collateral fittack. Hoverer. the Chief Executire posseares constitutional power to grant reprieves and pardons for offenses against the United States.'

      In militag justice, the authority who canvend the court.mnfiia1'is required to "put on B m n d hat" a and rsriaw ths findings and sentencw of snch of his oourts-martial. If the sentencg, BS approved, extends to an enumsrared srriaus punishment, the record gets, as outlined below, &t least a second mview by B Board of Rerieiv? The Uniform Code of llilimq Judce um, in putt, mmmon language BS

      *The opinione and concIu6ions presented herein are those of the author and do not neew~aril~represent rhe new8 of The Judse Ad\aeare Geneml'p Scbool or ani other goremment81 agene7

      *, JAGC. DEAR, Profeseor of Lav Brook1.m Lam School R J D.. 1034. Braaklrn Law School: hlember of Bars of Nea Fork Uiiilari Apmsle. and V S Buprreme Court

      I

      u s co\sr.. arc I1 8 2.'The immediate OT n suwenor commanding amcer, deDelidilig 00 factors eurlentlg ret forth in Arts P-24 of the Ivwnnu con^ 01 >111.1~&~41- J l ' b l l ~ ~ .

      Art

      nf L n r i.

      1RiO. 8 1 eh 16P 64 Stat 108 leffffllre \lay SI. lP6l). Re-enarted 2"

      1066 8s 10 V 8 C RI 801-GI0 11068) (hereinafter Cited as UCIIJ. art.-! m.~ltlioUgii criticized bi msny. thio function hn8 been ererilsed hirlorlrallr

      ID both these atitlioritie3. proriding that in so acting he and It shall approre and affirm, "only such findings of guilt. and the sentence or such part or &mounE of the Sentenca," a i he and it "finds correct in

      considered. in revim, three factom-legality, appropriateness, and then. diarretion: The lntrer two of these may lmd to xn smehorntion of sentence not required or xcnsianed by legal emor.tionma? take, in hrn,theformof suapension,mitigstition of sentence.l Suspension C O ~ C ~ I ~ I S

      only the wirexecution of the sentence. and will not be further cmiidemd herein.9 lfitigntion describe a reduction in the qumtit? or the qualiry of n sentence. n-here the genernl nature of the unislimeiit mmains the same. It is the substitution of n Sentelice lem the sentsnce adjudged by the court. ;.e.. Poriginal."commutation is R c h m p in the nature of the punishment by tlw subaitution of a lmer punishment of n differenr IiRture It is ptrtlcw larlg appropriate for thos8 punishments not reducible in kind. The classic illustration of commutation is the reduction of R Spntcnce of death to that of life imprisonment. By its rer? nnture. the formPr is not susceptible of mitigation, &s herein defined.'z

      Two basic paints should be n

      commutation: The changed Sente

      *or orerlsW,"P terms Of 16 leRm

      sentences meet1ng B genepa1 or lap

      AdFoeate General. ana (3) eRWS In which. UM" on mod cause ihom the court haa ~~nally.aentenees of death. or thow in,not be exmuted untll s~~rorpdbT the Pre-

      A T IO

      be adjudged by the eanrt, and must be & lesser punishment.'% It is mth commutation of sentences, as so defined in military lax-, that this article de&

      B PARDOV. NPlGATZOV AND COXNI. TATZOP IX THE SCPREYE COL'KT

      d curious chapter in federal Ian pertaining to theoommuted ~ e m U

      the mitigated ~entence started s-ith the landmark pardon case of C.8.

      %I. Wilson." Wilson had wmmitted a number of mail robberies m-sulting in several federal indictments. His tlisl undm one of them resulted in his sntence to death. President Jackeon pardoned Til-son, but expressly stipulated in the document that it did not apply to any of his other crimes. Then trial came up under one of the other indictments, his original pl~aof not guilty was rrithdrarrn and a plea of p l t y substituted. Concerned over the possible impact of the par^

      don. the judges asked ahether he moughc to avail himself of the pardon. His reply m s that he had "nothmg to my" but that he did not nish to arail himself of it. Because of their continued uncertninty. the judges cemified the question to the Supreme Court tinder the prae~ tiw at that time. In the argument in that court. the prosecution took the podrian that a pardon must be aecepred and must be pleaded ill

      bsr of my mbsequenr Rtternpt to prmecute the offender. Turning to English precedents. Chief Justice M.Iamhall a p e d Kith the proaaoution. and announced that &pardon. which is an act of grace exempting the donee from punishment for &crime which ha has committed, is a "deed, to the validity of nhich delivery is essential. and delirery is not complste rithout acceptmcc. It may Then be rejeoted by the person to whom it is tendered: and if it be rejected, we hare discovered no power in n coiirr to force it on him."" 3In~hnll further argued thnt R man of principle faced with an unjust accusation might prefer the

      -'hlCLI -pa. 88c: VCMJ, art 64 Casu1 stalemente raking one of two nllghtlS diderenr forms. Cmnmonb m e found: (11 Cornmuration mner mitlqare the oilglnsl punlrhment : IZI Commutalion must not 1nc-s~ the onglnai punishment For example we accomnanring note 22. rntro, U S P. Rigger. 2 U8CJlL.k 237. 306. R CMR 87, 106 (lBi31. The sffond atatemenl is mole a m . rateli descnptiie ol rhe BUrhOrlti of the court-martial on rehearings. See note 62, mfm Aon-eyer, see Jude Latimer I deEnitim of 'file beJl rorkablfor ~ ~ m m ~ m t i ~ n io r s i

      chrirrensn, 12 U S C ~

      383. 386, an C>LR 3

      unjust conviction to a pardon-which irdf vrould connote his aequi~ ~~lencein his monl guilt. In this sense. to such person, pardon \r-ou!d imply p r e r disgrace than conviction. The opinion in the Ti7aon case. although the actual holding is that R failure IO ple~dn pardon

      in bar remores the force of that pardon from the ease. lm became the generaring murce of general statements to the effect that R pardon is

      ii deed ro the rnlidity of nhch both delixery and acceptaim $ire required la

      r. the Supreme Court ruled definitively on

      One Tells WRS convicted of murder in the olambir and sentenred to death Pr~q.

      Fill

      tating: "I . . . do herebp pant . , . R pardon of the offense of which he \ w s convicted. upon condition that he bs imprisoned durinp his natural life: that is. the Sentence of death is hereby commuted to imprisonment for life . , . ." On the same day, Fells, in jail. signed this St8Tement: '.I hereby accept the aborr and within pardon, with condition nnnered."

      Fells thereafter sought habeas corpus. arguing that vhile the psr-don was d i d , the condition as void and his consent thereto nupator?. His contentions were rejected by the court, again on an examinatioii of English preeeddenrs and practices in [he field of pardons. h con-ditional pardon. well recognized in England. is vithin the constitu tional pardon power of the President The fallnc: 111 Wells' arpment n-as that the nttaching of the condition IS not the exercise of R

      nelr poner. but only an incident of the pardon power. Finally, cmi-timing the acceptance theory. the signing in jail of his consent to undergo the substituted punishment m s not thereby tainted v-itli duress.

      Xote that we hm.e encountered the clasic illustration of commutation in the change of a death sentence to n life sentence: that th8 pardon dacment used the terms "pndan upon condition" md -con-muted" &s equivalents: and that B fair inference from the holding 1s that acceptance of B commuted sentence at this time is n lepl prerequisite to the power. even of the Presidenr, to commute a aentenw

      Sixty years later, in Burdiok ti. T X . the ncreptanee r l i s o ~ was continued, but in B different setting.'I A federal pand jur>- seekinp

      "lW0 thmrlee hsie mn throwh the la% of Dardonr The ~aiher

      Ir to the

      (18aP). Is DPemlsMon thelarrer Lhmm

      "EoporfeWella 58 C.5 rl8Har > 421 rl8E4 "236r.8.79 llSl5l

      COMMUTATION

      ?'. Perosd~.'~in nhich the Superne Court sustained the comut&- tion to life imprisonment bp President Taft of a death sentence which follorred rhe defendant's conriction for murder in a tentorial court. The defendant made rhe follonmg sxllogism : Since commutation xas regarded RS a form of conditional pardon. in the Fdia mse comintathe power to pardon uncondition-gois of the punislimant actuallj imposed. bnt on condition wbxipent that the defendant mmw and undergo n less serere punishmenr of a different na~iiie.*~

      It rhm

      follons that if rlie nec~prnnce theory is part of the 1ar of pardons. it 1s equdl) p r t of the hv of mmiiimation. and vas so subwmed

      111 the Vdlv opinion Therefore. the defendant. not haring con-*entPd to the commutation. ia not bound by It. and. is entitlad to his

      er he liked 11 or not the public nelfare. not his enrent

      Sine the instant C B ~ deals with eommutntion 111 its true 8ens.

      whether the wme approach Would be taken withreference to ~n tinconditionnl pardon line get to be iqu~relg niled upon. Corwin tali- the position thnr whether the mrds quoted aboveof the acceptnnre dwtrine is perhnps doubtiinconditional pirdon. He pms on to pointsubstituting "n Commutfition order for R deed of pardon, a President can al~rnps hare hie iva? in such mnriers, prorided the sutmitured penalty is authorized by la^ and does not in common understanding exceed the original penalty." **

      Pauainp for R moment R t this point. it ma)- profitnbl>- Ix noted that from this ca* forward. commutation tnd mitigation. althaoph technically separate milirnr~ ha concepts, n o ~ run top.ether in generd federal Ian-: for once nny necesiitl- for xceptance of R commuted sentence is remored, the %ole jurticiable issue in eithewhethsr the substituted piimshment is remissoq. In c

      fine may present the question: no reported cases in point haw been

      '212U.S 516 119W170

      COMMUTATION sentence >r the foreping ease . . . is confirmed. but is mitigRted2'

      11s follow?' To be reduced in rank, so that his name shall be placed at the foot of the list of commanden in the Sary. and to be riisperided from rank and duty, on one-half rea pa>-, for a pen& of fire...