United States v. Iverson

COSTELLO, Judge,

concurring:

I join in affirmation of the findings and sentence. Despite the agreement of counsel before us that this case presents a Goode problem, I find none. Goode requires that a copy of the staff judge advocate’s review be served on “counsel for the accused” and that such counsel be given time to respond before the convening authority takes his final action. That rule was promulgated by the Court of Military Appeals for a criminal justice system in which the circumstances of military service, the statutory base and case law all permit or require many instances of successive counsel for the accused and convening authorities.

Here, the case was properly referred to a new convening authority for post-trial review and action after the record of trial had been authenticated by the trial judge and examined by the first trial defense counsel. At the new jurisdiction, the staff judge advocate’s review was served on the chief defense counsel and the fact of that service was noted in the review with language generally similar to that used in other jurisdictions since Goode. The chief defense counsel responded to that service of the review by acknowledging receipt “. . . of a copy of the foregoing review of the Staff Judge Advocate in the case of United States v. Iverson, my client.” [Emphasis supplied.] In the same writing, he expressed an informed decision not to reply on the merits.

Patently, the mechanics of Goode were satisfied. If there are any problems in this case, they arise from the adequacy of the efforts of the successor defense counsel. However, there have been no allegations of inadequacy and no instances thereof are to be found in the record before us.

We were told at argument that the successor defense counsel was not aware of the requirements of Goode at the time he acted. (Thirty days after Goode’s effective date and 70 after its promulgation.) Even if the Court were to accept such evidence, it should not affect any decision. Goode did not purport to add anything to the list of services an attorney renders to his client. The case simply established a positive time *492and procedure for such performance. Thus, upon the chief defense counsel’s formal statement that he acted for his “client” in reviewing the review of the staff judge advocate, one may conclude that he acted as an attorney. That being so, the requirements of Goode were satisfied at the time and in the manner contemplated by the Court of Military Appeals. We need find nothing more.*

Defense counsel in the field should review Appendix D, AR 27-10, particularly where dealing with assignment of counsel for limited periods or purposes.