(concurring):
I concur with the principal opinion by Judge Gierke, but write separately to remind members of the bench and bar of their responsibilities.
The military criminal law system has progressed since Congress implicitly rejected a “chief [appellate] defense counsel” in 1951.1 At present, the Army,2 Air Force,3 and Navy4 have separate defense counsel programs eliminating command pressure on defense counsels. The Coast Guard, while not having a separate defense counsel service, permits the appointment of defense counsel from outside the District of the convening authority.5 These programs enhance the independence of defense counsel to enable them to raise at the trial level issues concerning improper selections of potential members.
This Court has drawn a “distinction between the accusatorial process and the adjudicative stage” as to when and where command influence may be raised. United States v. Weasler, 43 MJ 15, 17 (1995); see also United States v. Hamilton, 41 MJ 32, 36 (1994). If command influence is known, or reasonably could be known in either the accusatorial stage or the selection process, failure to raise the issue constitutes waiver. Id. This rule is not designed to impede the rights of the accused, but to ensure professional conduct by the defense counsel as to issues that are known or reasonably could be known.
We have recognized other instances where command influence in the pretrial stages may be corrected by motion before trial, rather than raising the issue for the first time on appeal. This should not prove burdensome as counsel have not been shy about issues concerning Service Secretaries, see, e.g., United States v. Kelly, 40 MJ 558 (NMCMR 1994), and even actions against the Secretary of Defense, United States Navy-Marine Corps. Court of Military Review v. Carlucci, 26 MJ 328 (CMA 1988).
If the Court were to place a premium on raising these issues for the first time on appeal, the accused would unfairly benefit because the remand may be a number of years after the trial, when the witnesses and victims have moved or their memory has faded. In such instances, the criminal justice system would suffer when numerous cases are dismissed after such a remand. By requiring counsel to first raise the issues discussed above at trial, rather than on appeal, we may guarantee a fair, efficient system of military criminal law for the accused, the victim, and society.
. J. Lurie, Arming Military Justice 222-23 (1992).
On January 11, 1973, Secretary of Defense Melvin Laird directed the Armed Services to revise their procedures to place defense counsel under the direct authority of the Judge Advocate General or his or her equivalent.
. Chapter 6, Army Regulation 27-10, Military Justice (24 June 1996).
. Para. 5.2.1.1, Air Force Instruction 51-201, Administration of Military Justice (3 October 1997).
. Letter from Navy Judge Advocate General to Congressman Ike Skelton, dated August 30, 1996.
. Article 3-C-2, Commandant Instruction M5810.1C, Coast Guard Military Justice Manual (C2) (27 October 1992).