United States v. Bell

Ferguson, Judge

(concurring in the result) :

I concur in the result.

While I agree with the conclusion of my brothers that this cause must be returned to the board of review for a new hearing at which the accused is entitled to be represented by counsel appointed by The Judge Advocate General of the Army, I do not think it at all wise now to advise the accused that he may not reject his new representative unless he desires to “suffer the consequences of being unrepresented before the board of review.” That issue is simply not before us, and we should not foreclose consideration of what may become a very real and substantial question in the future. Accordingly, I disassociate myself from this prescient declaration and pass to the granted issue.

The accused was found guilty of desertion, in violation of Uniform Code of Military Justice, Article 85, 10 USC § 885, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. The convening authority approved the findings and sentence. *312The record of trial was forwarded to The Judge Advocate General of the Army for review by a board of review, and appellate defense counsel were duly appointed to represent the accused. Thereafter, a controversy arose between counsel, the accused, and his sister. As Judge Latimer points out, it was largely occasioned by Bell’s attitude and the interference in the case of his relative. Some fault can, nevertheless, be laid at counsel’s door, for the record before us does not disclose that they undertook to inform accused of the ethical requirement for a direct, personal relationship between an attorney and his client. Canon 35, Canons of Professional Ethics. Rather, they seemingly permitted accused’s sister to assume an increasingly important role in the case until she, not unnaturally, sought to assume control of the defense. I suggest that the entire problem might have been avoided had counsel from the beginning firmly insisted upon dealing only with their client and relegated the members of his family to their proper position.

Be that as it may, matters soon came to a head, and, upon accused’s request, counsel withdrew from the proceedings. Bell was informed it was the policy of The Judge Advocate General under such circumstances, not to appoint new appellate counsel. Subsequently, the board of review heard his ease without representatives appearing for him.

The principal opinion disposes of the issue before us on the basis that the board of review erred prejudicially in failing to afford accused notice of its relief of his assigned counsel and its subsequent hearing on the merits of his case. I believe that this is no more than an ancillary question, and I prefer to dispose of the issue by inquiry into the more basic proposition whether, under the demonstrated circumstances, The Judge Advocate General may properly refuse to appoint new counsel to represent the accused. I think it is clear that he cannot.

Code, supra, Article 70, 10 USC § 870, provides pertinently:

“(a) The Judge Advocate General shall detail in his office one or more commissioned officers as appellate Government counsel, and one or more-commissioned officers as appellate defense counsel, who are qualified under section 827 (b) (1) of this title (article 27(b) (1)).
“(c) Appellate defense counsel shall represent the accused before the board of review or the Court of Military Appeals—
(1) when he is requested to do SO’ by the accused;
(2) when the United States is-represented by counsel; or
(3) when the Judge Advocate-General has sent a case to the Court of Military Appeals.” [Emphasis, supplied.]

If the mandatory language of the-foregoing statute does not in itself require the conclusion that The Judge Advocate General appoint counsel to represent the accused, reference to its legislative history will suffice to remove-any lingering doubts:

“Senator KEFAUVER. Does the accused have the right of selection of his own attorney in the proceedings before a Court of Military Appeals ?
“Mr. MORGAN. Civilian counsel? Certainly, sir; if he wants civilian counsel, and if he doesn’t then we have set up in the Judge Advocate General’s office, appellate counsel, and defense counsel who must appear for him.
“Senator KEFAUVER. Who is the appellate Government counsel and who selects the counsel?
“Mr. LARKIN. The Judge Advocate General will select the Government counsel from his own staff — the people in his office — where there is to-be such an argument.
“The accused may have his own or have civilian counsel represent him before these appellate tribunals. But if he does not, then the judge advocate will appoint an officer from his office to defend or at least present the accused’s side of the case.” [Hearings before Senate Armed Services *313'Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, pages 56, 290.] [Emphasis supplied.]

The foregoing excerpt emphasizes it •was the intent of Congress to insure that the accused was represented on appeal by counsel designated by The Judge Advocate General and that the statute •admits of no exceptions based simply upon the policy determinations of that officer. Indeed, it would be ruinous to the public defender concept thus enacted by Congress to permit The Judge Advocate General to refuse to appoint new legal representatives for the accused -only because there had been a tactical disagreement between the parties. Experienced attorneys know that controversies frequently develop with their clients. In the absence of fraud or similar considerations, an attorney must normally present the contentions of the person whom he represents. United States v Oakley, 25 CMR 624, and cases collected therein. To say that appointed military counsel have so much authority in the case that an accused may refuse their advice only at the peril of being denied representation places too narrow :an interpretation upon the attorney-client relationship and the accused’s 'Congressionally declared right to have an advocate appear on his behalf. Of course, there must come a time when it is reasonably apparent that an accused’s good faith in repeatedly rejecting his .counsel may be questioned. In such circumstances, however, The Judge Advocate General and the boards of review •are not powerless. Counsel may be appointed and directed to argue such errors before the board as he deems meritorious. Those which he cannot in good conscience urge upon the appellate body may, if not dishonest, be properly assigned simply on behalf of the accused. Dishonesty, however, does not mean mere disagreement. If the accused requires counsel either to urge his contentions or to withdraw from the case, perhaps the time will soon arrive when the orderly administration of justice will demand that the board nevertheless proceed to hear the cause. In my opinion, however, Congress did not intend the defendant’s right to representation to be so circumscribed that those charged with administering Code, supra, Article 70, may at once insist that the accused either accept the counsel initially appointed or secure a civilian attorney.

In sum, then, I am convinced that The Judge Advocate General erred in failing to appoint additional appellate counsel to represent the accused. As the board of review proceeded to a hearing of the case without any appearance on his behalf, prejudice is apparent. Resolution of this question serves to dispose of the appeal, and I believe that we need not now delve into the issue whether the accused was entitled to a hearing before the board on the action of The Judge Advocate General or warn the accused with respect to the degree of relief to which he may be entitled in the future.

As the opinion of my brothers orders a new hearing on the merits before the board of review and the appointment of counsel for the accused, I concur in the disposition which they direct.