(dissenting).
Under Article 45, Uniform Code of Military Justice, 10 U.S.C. § 845, a plea of guilty can be vacated in the course of trial on various grounds, including the introduction of “matter inconsistent with the plea,” and thereafter “the court shall proceed as though . . . [the accused] had pleaded not guilty.” The article has consistently been observed and followed by this Court. Illustrative is United States v. Walter, 14 U.S.C.M.A. 142, 33 C.M.R. 354 (1963).
In Walter, the accused entered pleas of guilty to lesser offenses than some of those charged and to one offense as charged. After the Government had rested its case, defense counsel made certain assertions respecting accused’s state of mind at the time of the offenses that were inconsistent with the intent element of the offenses to which the accused had pleaded guilty. The trial judge (then known as the law officer) conducted a hearing, without the court members present, to consider the impact, under Article 45, of the assertions on the pleas of guilty. As a result of the hearing, the accused changed his guilty pleas to pleas of not guilty, and the trial continued to conviction by the court members and the imposition of sentence. In this Court, the accused contended the trial judge erred to his prejudice by failing to declare a mistrial because the pleas of guilty “had been before the members of the court and their withdrawal could not suffice to remove them from consideration by the” members during their deliberations on the verdict. Id. at 144, 33 C.M.R. at 356. We rejected the contention. Referring to Article 45, the Court held that the fact the pleas of guilty had been before the court members did not invest the trial with such “possibility of unfairness” as to require declaration of a mistrial and submission of the charges to a different court-martial. Id. at 146, 33 C.M.R. at 358.
The Court’s opinion here casts grave doubt upon the validity of Article 45. I do not share that doubt, although I recognize that in a particular case a judge may be disqualified because of influence upon him of previously acquired knowledge of the facts of the case. See United States v. Hodges, 22 U.S.C.M.A. 506, 47 C.M.R. 923 (1973); and United States v. Cockerell, 49 C.M.R. 567 (A.C.M.R.1974), pet. denied 23 U.S.C.M.A. 640 (1975). On the record of this case, I have no doubt of the judge’s continued impartiality, especially as the accused refused the judge’s offer to vacate the earlier grant of his request for trial by judge alone. See United States v. Shackelford, 2 M.J. 17 (C.M.A.1976).
In a second assignment of error, the accused maintains that the convening authority refused to provide defense counsel with a copy of the record of trial to use, as necessary, during counsel’s review of the post-trial advice of the staff judge advocate and that such refusal violates the rule prescribed in United States v. Goode, 1 M.J. 3 (C.M.A.1975). Goode does not mandate service of a copy of the trial transcript; it requires only that “a copy of the written review required by Article 61 or 65(b), UCMJ, 10 U.S.C. § 861 or 865(b), be served on counsel for the accused.” Id. at 6. The right of the defense to a trial transcript is provided for by Article 54(c), UCMJ, 10 U.S.C. § 854(c). Under that article, a copy of the record of trial must “be given to the accused as soon as [the record] is authenticated.”
Defense counsel’s response to the staff judge advocate’s advice indicates he knew the accused had, in due time, received an authenticated copy of the record of trial. It indicates counsel was fully aware of his responsibility to review the staff judge advocate’s advice within 5 days after service of a copy of it upon him. Nevertheless, he made no arrangements to obtain the accused’s copy from him until after he was served with the advice. He excused his inaction on the ground that the “accused’s copy of the Record is his own and he should not be placed in a position of being forced to part with it.” That excuse impresses me as a gross elevation of form over substance. In my opinion, counsel’s desire to further his personal convenience provides no justification to invoke the sanction of the Goode rule.
For the reasons indicated, I would affirm the decision of the Court of Military Review.