ings (UCMJ, Art 51) is not independently exercised and noncompliance with the letter of the Code cannot be held to violate concepts of military justice or a fair trial. United States v. Pulliam (No. 2580), 8 USCMA 95, 11 CMR 95.

§ 25. Trial Counsel

§ 25.3. Qualifications or eligibility.

An officer who had been appointed defense counsel in the pretrial investigation was appointed assistant trial counsel. This was discovered before the trial and new orders were issued appointing a court which did not include this officer, but the trial counsel was not replaced. When the trial opened, the officer formerly appointed assistant trial counsel was called as a witness concerning his participation. He testified that, although he had been appointed defense counsel in the pretrial investigation the accused did not confide in him as he had a civilian counsel and that the civilian counsel did not take him into his confidence. As to his participation as assistant trial counsel prior to his replacement, he stated that he had disclosed nothing to the trial counsel as he knew nothing and that his duties as assistant trial counsel had been principally running errands and making appointments for the trial counsel. The trial counsel also testified that he had received no confidential information from the officer involved. Held: The appointment of the officer involved as assistant trial counsel was error as a matter of law. However, under the circumstances, he did not act for the prosecution in the sense that the word is used in Article 27 and the trial counsel's position was not tainted by the limited association and accordingly the error was harmless. (Citing ACM 5777, Bishop, 6 CMR 719, 721; ACM 4807, Blair, 5 CMR 454.) ACM 6499, Danilson (1953) 11 CMR 692.

The appointed trial counsel had previously, in his capacity as assistant staff legal officer of the convening authority, advised the commanding officer of the accused with respect to conducting an investigation of the accused's conduct and as to what punitive article certain offenses pertain. Held: The giving of this technical advice, which was not shown to be concerned with the merits of the case or directing the official action of the commanding officer, did not disqualify this officer to act as appointed trial counsel. (Citing U.S. v. Lee (No. 200), 1 USCMA 212, 2 CMR 118.) NCM 228, Conway (1953) 11 CMR 625.

The appointing orders named a trial counsel and defense counsel and showed that neither was qualified in the sense of UCMJ, Art 27c. A modification detailed a new trial counsel but did not indicate his qualifications. Held: Modifications to appointing orders naming counsel should clearly state the legal qualification of counsel since such qualification is a personal one and does not remain automatically attached to the titles of Trial Counsel or Defense Counsel of an appointed court. However, assuming that the new trial counsel was a lawyer in the sense of Art 27c while the original

appointing order indicated that the defense counsel was not a lawyer, there was no prejudice to the accused under the circumstances of this case since the record indicates that he was defended by individual counsel and did not desire the regularly appointed defense counsel to act in the case. There is no requirement that individual counsel have similar legal qualifications to an appointed trial counsel. NCM 302, Ray (1954) 15 CMR 539.

The record disclosed that the trial counsel had signed the charge sheet as the accuser in the case and had also sworn to an additional charge. However, there was no evidence suggesting hostility or bias or prejudice. Furthermore, the trial counsel had made a full disclosure as to the extent of his prior participation as accuser before the accused entered a plea of guilty, which he persisted in, after being warned of the effect of the plea. Furthermore, the trial counsel participated in the proceedings only as to matters of form and as to matters of sentence. Held: In view of the fact that the record failed to show that the trial counsel acted as an "investigating officer" within the prohibitions of UCMJ, Art 27(a), and par 64, MCM, 1951, or that the trial counsel had a personal bias toward the accused, and the accused admitted his guilt with full knowledge of his rights and trial counsel's prior participation as an accuser, such prior participation was not prejudicial to the accused in the absence of any evidence in the record to the contrary. (Citing U. S. v. Lee (No. 200), 1 USCMA 212, 2 CMR 118.) If it is necessary for an accuser to act as trial counsel, a full disclosure ought to be made as to the extent of his participation. If no formal investigation was had, that fact should appear in the record. NCM 309, Nagle (1954) 15 CMR 562.

§ 25.11. Dismissal, retirement or separation from service.

The case was referred to trial on 3 February 1953 to a general court-martial appointed on that date. On 4 February a new court was appointed and all cases in the hands of the trial counsel of the court appointed on 3 February were transferred to the new court. A named major and first lieutenant, each properly certified, were appointed trial counsel and assistant trial counsel, respectively, of both courts. The charges were served on the accused on 5 February by the appointed assistant trial counsel. On 3 March the major who was the appointed trial counsel was relieved from active duty. The trial of the case was held on 12 March with the appointed assistant trial counsel present and acting for the prosecution throughout the trial. Held: The fact that the appointed trial counsel was relieved from active duty prior to the trial did not deprive the court-martial of jurisdiction, nor did it result in any error prejudicial to the substantial rights of the accused, since the officer who acted as trial counsel at the trial had been appointed on appropriate orders as a representative of the prosecution and had acted in this capacity when he served the charges on the accused and presented the government's case. He was at the time of such appointment and at the time of trial, certified as competent to perform the duties of trial counsel pursuant to UCMJ, Art 27b. (Citing U. S. v. Good

son (No. 424), 1 USCMA 298, 3 CMR 32; ACM S-4644, Jensen, 7 CMR 772; distinguishing ACM 6164, Butler, 8 CMR 692.) The board of review in this case is not deciding that a special or general courtmartial which did not have any counsel appointed to represent the the prosecution, or a general court-martial which had no appointed counsel representing the prosecution who was qualified pursuant to UCMJ, Art 27b, is necessarily legally constituted. ACM 6674, Royer (1953) 10 CMR 699.

§ 27.1. Generally.

§ 27. Defense Counsel

Duty of defense counsel representing co-accused to advise of conflicting interests in conduct of defense, see CM 363087, Self, Best and Leffew, TRIAL § 11.7.

Competency or incompetency of counsel selected by accused, see § 29.1.

§ 27.3. Qualifications or eligibility.

In the affidavits for a new trial, the assistant defense counsel alleged that shortly after the apprehension of the accused, he was summoned to the office of the division judge advocate who explained the substance of the case to him, gave him copies of the statements made by the accused, and told him of the necessity for speedy disposition of the case. The charges were then drafted with the assistance of the division judge advocate and sworn to by the accuser before the assistant defense counsel as assistant adjutant. Thereafter, it was alleged, the assistant defense counsel was ordered to investigate the case but, when this order was rescinded and another investigator appointed, he was instructed to assist his replacement. The affidavit did not indicate what assistance was given. The reply affidavits clearly established that the assistant defense counsel was the Courts and Boards officer of his regiment and, as such, normally performed ministerial functions in the processing of court-martial charges. It also appeared that the assistant defense counsel served as counsel for the accused during the pretrial investigation. Held: No ground for a new trial is established. None of the functions of the assistant defense counsel constituted him an investigating officer within UCMJ, Art 27(a), and his participation in the pretrial investigation as an investigating officer was impossible since he served as counsel for the accused during such investigation. The lack of corroboration of the defense allegation coupled with the circumstance that the assistant defense counsel wrongfully concealed the disqualification, if any, both from his clients and the court destroys his credibility. United States v. Borner et al (Nos. 1284, 1394, 1468) (Pet for new trial), 3 USCMA 313, 12 CMR 69.

In answer to a query as to whether any member of the defense had acted as a member of the prosecution, the appointed defense counsel stated that antecedent to investigation of the matter for which the accused was on trial, during preliminary inquiry, he was consulted by the accuser and the Provost Marshal and that

he had informed the accused of the extent of the consultation. The law officer then ruled that the defense counsel was disqualified by prior participation and directed that this prior participation be referred to the convening authority so that he could appoint a counsel who had not previously participated. It appeared that the consultation consisted in the appointed defense counsel informing the provost marshal and the accuser, on their inquiry, of the procedure involved in obtaining a search warrant. It further appeared that no search warrant was ever obtained and the advice given by him was not followed by the accuser, the provost marshal, or by anyone else. The accused made a written request to the convening authority for the appointed defense counsel to act as such, or if this was not possible, that he be made available to act as individual counsel. The convening authority informed the court that the appointed defense counsel was not legally barred from acting as defense counsel in view of the accused's specific request and the trial then proceeded with the appointed counsel acting for the defense. Held: The appointed defense counsel had not acted for the prosecution within the meaning of paragraphs 6 and 61f (4), MCM, 1951. His participation was purely in regard to an incidental and collateral matter giving legal advice, and not only took place prior to the time when there was a prosecution as such, but prior to any preliminary or formal investigation by either the convening authority or the commander exercising immediate jurisdiction over the accused. Furthermore there was no prejudice to the accused in view of his specific request that if the appointed defense counsel could not be appointed that he be made available as individual counsel. Likewise a contention that it is against public policy for an attorney who has taken part in one side of a case thereafter to take part in another cannot be sustained. The test in cases of this kind is whether or not a bona fide attorney-client relationship involving confidences of a material nature has arisen and this case does not show such a bona fide attorney-client relationship. [Twitchell, J.A., concurring stated that UCMJ, Art 27 (a), does not prohibit a convening authority from naming an appointed defense counsel to a court-martial who has acted for the prosecution, but, provides that counsel shall not act. Hence, the court was legally constituted and any error committed was that another defense counsel was not appointed and that the original defense counsel was permitted to act for the defense. There was no prejudice in this error since the accused waived his rights under the Article by his request for the particular counsel.] NCM 230 (recon), Rosa (1953) 11 CMR 635.

The appointed defense counsel in a special court-martial trial was a warrant officer while the appointed trial counsel was a commissioned officer. Neither the trial counsel nor the defense counsel were lawyers in the sense of UCMJ, Art 27. Held: The appointment of a warrant officer as defense counsel in this case was error but the rights of the accused were not prejudiced because of the inequality in rank. Since the record shows that neither the trial counsel nor the defense counsel was a lawyer in the sense of Art 27, the

statutory requirements of the Code were met in that a trial counsel and defense counsel similarly qualified were appointed. Seniority is of no moment unless there be a palpable showing in the record that it prejudiced the accused. (Citing U. S. v. Goodson (No. 424), 1 USCMA 298, 3 CMR 32.) NCM 296, Zilnick (1954) 14 CMR 527.

Although Captain J. replaced Lieutenant L. as appointed defense counsel, Lieutenant L. appeared in court and stated that he would represent the accused as the regularly appointed defense counsel. The record contains no reference to Captain J. and all parties to the trial, including the accused, were under the mistaken belief that Lieutenant L. was still the appointed defense counsel. Held: The accused had a right to be represented by Captain J., the regularly appointed defense counsel, and there was no evidence that the accused knowingly waived such right. Lieutenant L. was actually an intruder in the proceedings and, accordingly, the findings must be set aside. (Citing UCMJ, Art 38; ACM S-3051, Nyman, 5 CMR 598; ACM 3318, Fleming, 4 CMR (AF) 210; ACM 4820, Grant, 5 CMR 692.) ACM S-8990, Thomas, 15 CMR 931.

Counsel designated in the orders appointing the special courtmartial consisted of a trial counsel and the defense counsel each certified in accordance with the provisions of UCMJ, Art 27(b), and an assistant trial counsel and an assistant defense counsel neither of whom was legally qualified under Art 27. Only the assistant trial counsel and the assistant defense counsel were present at the trial. The accused was not given the opportunity expressly to indicate his desire as to representation in the manner described in par 61f (3), MCM, 1951, for situations wherein the accused is represented by counsel not legally qualified. Held: The findings of guilty and the sentence must be set aside as incorrect in law notwithstanding the principle of equivalency of representation was met herein. Although one basic consideration is equivalency, the Code and Manual have provided something more for the accused's benefit, i.e., his right to be represented at trial by counsel legally qualified in the highest degree of qualification held by any member of the prosecution, in this case by counsel certified pursuant to the provisions of UCMJ, Art 27 (b) because the appointed trial counsel was certified, and this despite the absence of the latter from the trial. There is nothing in the record to support an inference that the accused understood his rights and knowingly waived it, selecting the assistant defense counsel as his individual counsel. (Distinguishing ACM S-5230, Fritz, 8 CMR 813. See also ACM S-5625, Saulsbury, 9 CMR 727, and ACM S-7672, Perron, 13 CMR 710.) ACM S-8235, Steiner (1954) 14 CMR 947.

§ 27.5. Joint or common trials.

Failure to provide separate defense counsel for joint accused as non-prejudicial where asserted antagonistic defenses do not materialize on trial, see ACM 7935, Harvey et al, TRIAL § 11.7.