United States v. Nicholson

COOK, Judge

(concurring with reservations):

In the situation before us we deal with perceptions and with realities. Undoubtedly the perceptions created by a defense counsel being opposed by his rating officer are contrary to the concept of fairness intended by the Uniform Code of Military Justice, and are ideally best eliminated by the establishment of a separate, insulated defense counsel system. In addition, there are the subtle realities of a system where counsel must evaluate opposing counsel for either side. I agree that such relationships should be avoided where possible. However, the military justice system does not always operate in ideal situations, and there will be times dictated by military necessity where such relationships cannot as reasonably be avoided as might be possible in the civilian criminal law system. Thus, an inflexible rule should not be imposed. Where this situation arises, inquiry by the military judge and advisement of the accused seem the best way to avoid real or imagined improprieties. That was done here, and any apparent conflicts have been alleviated.