United States v. Clark

OPINION OF THE COURT

O’DONNELL, Judge:

At his trial in the Federal Republic of Germany, the appellant was represented by Samuel Cohen, a civilian attorney, in addition to his regularly detailed military counsel. Mr. Cohen stated for the record that he was the chief counsel and in fact acted in that capacity throughout the trial proceedings. Approximately two months after trial, a copy of the staff judge advocate review and an authenticated copy of the record of trial were received by the military defense counsel for the review in accordance with United States v. Goode, 1 M.J. 3 (C.M.A.1975). The certificate of service was addressed to Mr. Cohen who during the interim had returned to his home in Maine. Two days after receipt of the record and review, the military counsel signed the certificate beneath Mr. Cohen’s signature block indicating that he had no rebuttal to the review. After the record of trial was forwarded to the United States Army Judiciary, Mr. Cohen executed an affidavit which stated pertinently that he had never received a copy of the record or the review and that he did not recall having delegated this right to anyone.

The Court of Military Appeals in Goode established a rule which requires that a copy of the post-trial review “be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or'on which he otherwise wishes to comment.” United States v. Goode, supra at 6. We are satisfied that this mandate has been met.

In United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978), Judge Cook and Judge Perry agreed that as the detailed military counsel had been served with a copy of the review and given an opportunity to respond to it, the requirements of Goode were satisfied notwithstanding the fact that the accused was also represented at trial by a *540civilian attorney. Judge Cook concluded that in the absence of evidence to the contrary it may be presumed that detailed military counsel may properly perform the Goode review. Judge Perry, concurring in the result, agreed that the Goode service was proper by presuming that the military counsel discussed the matter with the civilian attorney and arrived at a mutually agreeable course of action. Chief Judge Fletcher dissented. He would permit service on military counsel only when there was evidence of an agreement between counsel with the consent of the accused that military counsel would be solely responsible for the Goode review.

The instant case falls between these two extremes. At the time the military defense counsel performed the Goode review, there was no evidence indicating that he could not do so. By so acting, military counsel represented not only that he could act in his own right but, in view of the fact that the certificate was addressed to Mr. Cohen, he also represented that he was acting for him or with his authority. Under the circumstances, the staff judge advocate could properly rely on these representations.

As noted, however, the civilian counsel stated that he had not delegated authority to the military counsel to act for him. Significantly, Mr. Cohen did not state that he had informed military counsel that he could not act. We do not believe that civilian counsel’s after-the-fact disclaimer invalidates the acts of the military counsel.

While we agree with Judge Perry that the better procedure is to serve a copy of the review on both civilian and military counsel, we cannot say that the procedure followed by the staff judge advocate in this case was erroneous or in any way prejudiced the substantial rights of the appellant. Even now, there is no contention by the appellant that the post-trial review is inaccurate in any respect. Moreover, the appellant has not been deprived of the effective assistance of counsel. We are not confronted with a substitute counsel or a counsel who had been discharged by the appellant. See United States v. Davis, 5 M.J. 451 (C.M.A.1978); United States v. Ray, 6 M.J. 60 (C.M.A.1978). The military counsel who conducted the review in this case was present throughout the trial. Accordingly, we hold that the requirement^ of Goode were satisfied. •

The findings of guilty and the sentence are AFFIRMED.

Chief Judge RECTOR concurs.