United States v. Kraskouskas

Opinion of the Court

HomeR FeRguson, Judge:

Private Joseph S. Kraskouskas was charged with the violation of several punitive Articles of the Uniform Code of Military Justice. The convening authority appointed First Lieutenant William J. Cooney, a qualified attorney who was an officer in the Judge Advocate General’s Corps, to assist him in the preparation of his defense. At the same time the accused requested and obtained the services of Captain Clyde M. Turner as individual counsel. Together these officers collaborated in preparing the case for trial. When the case came on for hearing before a general court-martial convened at Seoul, Korea, both the appointed and individual counsel were present. Appointed counsel announced in court that the accused would be defended by individual counsel. The latter, in answer to an inquiry by the trial counsel concerning his legal qualifications, stated that he was neither certified by The Judge Advocate General of the Army nor qualified in accordance with Article 27 (b) of the Code, supra, 10 USC § 827.1 He informed the court, however, that the accused “elects to be defended by individual counsel and we request that the regularly appointed defense counsel be excused.” The following colloquy then occurred between trial counsel, individual counsel, appointed defense counsel, the law officer, and the accused:

“TC: Captain Turner, are you a graduate of an accredited law school?

“IC: I am not.

“TC: Are you a member of any bar of any state of the United States or the District of Columbia?

“IC: I am not.

“DC: With the permission of the law officer, I request to be excused.

“LO: Do you understand, Private Kraskouskas, that if you desire you could retain First Lieutenant Cooney to also represent you?

“Accused: Yes, sir.

“LO: Do you desire to excuse Lieutenant Cooney?

“Accused: Yes, sir.

“LO: Lieutenant Cooney may be excused.”

The entire defense was thereafter conducted by Captain Turner.

In the course of representing the accused at trial, Captain Turner, among other things, exercised a challenge against a court member, offered several motions for appropriate relief with legal argument in support thereof, moved to dismiss one specification on the grounds of failure to allege an offense and another specification on the grounds of unreasonable multiplication of charges, made numerous and timely objections to trial counsel’s examination of the witnesses and to the introduction of evidence, and made closing argument on findings and requested instructions favorable to the accused. The court-martial found the accused guilty of two offenses while acquitting him of two others. At the conclusion of the trial Captain Turner forwarded to The Judge Advocate General of the Army a brief setting forth numerous legal errors as grounds for reversal. Before this Court several issues are presented. The major assault on this conviction is that the law officer erred to the substantial prejudice of the accused “in allowing unqualified ‘counsel’ to represent the accused.”

The Government presents a twofold argument to refute this contention. First, it urges that Congress never intended to limit an accused’s selection of individual military counsel to lawyers. Secondly, it insists that inasmuch as the accused expressly waived his right to be represented by a qualified lawyer the law officer did not err in permitting a nonlawyer to conduct the defense. The basic issue as we view it is simply whether or not a nonlawyer should be permitted to practice before a general court-martial.

Prior to the enactment of the Uniform Code of Military Justice it was not uncommon for an accused before a general court-martial to be represented by a nonlawyer. With the advent of the Code, however, many remedial changes in the administration of military justice were inaugurated. One of the most important of these changes required the appointment of qualified lawyers to represent both the prosecution and the defense in trials before general court-martial. Congress, in Article 38 (b) of the Code, supra, °10 USC § 838, recognized three sources from which defense counsel could be drawn. The most frequently used source is that from which the convening authority appoints counsel “pursuant to Article 27.” This latter Ar-tide sets forth the qualifications which appointed counsel must possess. In substance it provides that counsel must be a lawyer who has been admitted to practice before the highest court of a state or is a member of the bar of a Federal court. In addition, counsel must also be “certified as competent” by The Judge Advocate General of the particular service to perform the duties of defense counsel. Article 27 (b) (2). Article 38(b) also permits an accused to be represented “by civilian counsel if provided by him.” Counsel so provided must be a lawyer who is a member in good standing of a recognized bar. Other than this the Code imposes no special qualifications upon a civilian attorney’s right to practice before a court-martial. Cf. United States v Nichols, 8 USCMA 119, 23 CMR 343. Th e most infrequently used source from which general courts-martial defense counsel are drawn — and that presented in the case at bar. — is by the accused’s selection of unqualified “military counsel.”

Of the three categories discussed above, it is clear that “counsel duly appointed pursuant to Article 27” and “civilian counsel” provided by an accused must be qualified attorneys authorized by some recognized licensing authority to engage in the practice of law. The precise issue presented therefore is whether “military counsel” selected by an accused pursuant to Article 38(b) must likewise be a lawyer. Appellate defense counsel forcefully contends that only licensed attorneys who are members of the bar should be permitted to practice before a general court-martial. In support of his contention he argues that the basic policy reasons which underlie the prohibitions against the unauthorized practice of law, i.e., to protect the administration of justice against unethical practitioners and to safeguard an accused against incompetence, are as fully applicable in courts-martial as in civilian courts. There is merit in counsel’s argument.

Without regard to the situation which existed prior to the Code, we believe that the day in which the non-lawyer may practice law before a general court-martial must draw to an end. We remain unconvinced that Congress ever intended to permit one who has been accused of an offense serious enough to warrant referral to a general court-martial to be represented by a nonlawyer before that tribunal. Lawyers have always been considered officers of the court. A layman could not be considered such. The code of ethics would not apply to the nonlaw-yer. A lawyer is held to a high standard of professional capacity and his decisions on law are binding on his client. 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. It is inconceivable that Congress would, on the one hand, prescribe exacting legal qualifications for appointed counsel, while on the other, permit an accused by his own selection to be represented by a nonlawyer. 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. As the Supreme Court of the United States said in Johnson v Zerbst, 304 US 458, 463, 58 S Ct 1019, 1022, 82 L ed 1461, 1466, “Even the intelligent and educated layman has small and sometimes no skill in the science of law.”

We are not unmindful that in the past those representing the adversary interest before a military court-martial were often nonlawyers who performed very creditable service on behalf of their clients. Nevertheless, the obvious truth — with which none can quarrel— is that one untrained in the law is seriously handicapped by the lack of professional skill and legal ability which is so necessary in adversary proceedings, especially involving criminal matters. To the nonlawyer rules of evidence mean little and instructions are but unimportant technicalities. To the lawyer, however, they are tools which oftentimes spell the difference between success and failure.

The constitutional right to effective assistance of counsel is not concerned with merely a procedural requirement but also demands a professional and requisite standard of skill. A fair standard of professional competence must be a necessary condition precedent with the professional undertaking of the defense of a person on trial for a crime. United States v Horne, 9 USCMA 601, 26 CMR 381.

We conclude, therefore, that in order to promote the best interests of military justice, it is imperative that only qualified lawyers be permitted to practice before a general court-martial.

Our holding is not to be construed in any manner as prohibiting an accused from insisting upon the right to conduct his own defense should he so desire without the assistance of counsel. As always, an accused can waive his right to counsel “if he knows what he is doing and his choice is made with eyes open.” Adams v United States, 317 US 269, 279, 63 S Ct 236, 242, 87 L ed 268, 275. All we now hold is that an accused, even at his own insistence, may not be permitted lay representation before a general court-martial. Of course this does not in any manner infringe upon his right to consult with a nonlawyer, or even to have a non-lawyer present at trial and seated at the counsel table. However, concerning the actual trial proceedings before the general court-martial itself, only lawyers may now participate.

Accordingly, we direct that the practice of permitting nonlawyers to represent persons on trial before general courts-martial be completely discontinued. In view of our holding it is unnecessary to consider the remaining issues raised. The decision of the board of review is reversed. A rehearing may be ordered limited to those offenses of which the accused was convicted. In view of the foregoing action, the petition for new trial is denied.

Chief Judge Quinn concurs.

1 “Art. 27. Detail of trial counsel and defense counsel

“(b) Trial counsel or defense counsel detailed for a general court-martial—

(1) must be a judge advocate of the Army or the Air Force, or a law specialist of the Navy or Coast Guard, who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highes c court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and

(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.”