United States v. McFarlane

Quinn, Chief Judge

(concurring):

Although the principal opinion amply justifies the conclusion that the accused was deprived of the effective assistance of counsel, I think a few other comments are appropriate. At the trial, defense counsel demonstrated that he believed that the court was ordered to convene at Wertheim, the scene of the offense, instead of at Frankfurt, its regular place of meeting, “for one reason alone, and that'is in the hope that this case would have a tremendous impact .upon you gentlemen as members of the court.” Such a belief would seem to impel a motion for a change of venue (see United States v Gravitt, 5 USCMA 249, 17 CMR 249), but no such motion was ever presented. Also, the preliminary psychiatric report on the accused’s mental condition recommends that he be transferred to á general hospital for psychological testing “to complete the psychiatric evaluation.” Apparently, no attention was paid to the recommendation. Here again, counsel who was attentive to the grave responsibility of defending a capital case would have moved for appropriate relief in order to obtain a full report on the accused’s mental condition before going to trial. In short, the situation in this case is the reverse of that in United States v Bennett, 7 USCMA 97, 21 CMR 223; defense counsel here conceded everything, explored nothing, was unprepared on every issue, and made the least of what he had.