accused represented by a civilian lawyer protested that he had not been brought to trial with the necessary promptness required by the Sixth Amendment. At an out-of-court hearing evidence was presented by the defense claiming illtreatment while the accused was in the brig awaiting trial. The defense theory at the time was that the treatment in the brig was relevant to a showing of vexation and oppression suffered during the delay before trial. After an adverse ruling on the speedy trial issue the accused pleaded guilty. The same evidence was not presented to the court during the pre-sentence proceeding. The United States Court of Military Appeals reversed as to the sentence saying in effect that the accused had been inadequately represented because of the "fair possibility" that a showing of the rigors of pre-trial restraint would have resulted in a less severe sentence. The Broy case is an important one in that it shows the high standard of representation which the Court will require; because it again shows that the fair possibility of prejudice to an accused will induce a reversal; and most important it shows that no incident in the experience of an accused before trial can be overlooked as a factor in the presentation of the defense case on the sentence.

ARGUMENT ON THE SENTENCE

It has been conjectured that failure to present evidence in mitigation and extenuation or to argue on the sentence could cause a court to conclude that a pre-trial agreement had been made as to the sentence.16 Such conclusion might cause the court members to see no real purpose in devoting time and effort to a consideration of an an appropriate punishment. Serious consideration should be given to the presentation of an argument on the sentence, for even if there is a pre-trial agreement, the accused could still receive a sentence from the court which would be less severe than the one contemplated by the pre-trial agreement.

While trial defense counsel should strongly consider making an argument on the sentence this is not always required if the record displays a reasonable effort to minimize punishment. In one case," the accused pleaded guilty to the crime of robbery. Some time prior to trial, the defense counsel entered into a stipulation with the trial counsel. It was introduced in evidence and the facts agreed upon were read to the court members. The language was such that the part played by the accused in the robbery was mini

16. United States v. Welker, 8 USCMA 647, 25 CMR 151 (1958). 17. United States v. Williams, 8 USCMA 552, 25 CMR 56 (1957).

mized and he was portrayed as the moving party in making restitution for the funds stolen from the victim. Personal data concerning the accused, which was also introduced in evidence, informed the court that he had no previous military convictions. After findings of guilty were returned, the defense offered no evidence in extenuation or mitigation, and the defense counsel waived argument. Under the circumstances of this case, waiver of any argument on the sentence did not indicate the accused was denied effective representation of counsel, particularly in view of the fact that it appeared there was other unfavorable evidence available which could have been used in rebuttal if the defense had opened up the subject of extenuation and mitigation. In United States v. Sarlouis 18 it was held that the accused was not deprived of adequate representation at the trial because his counsel presented no argument on the sentence where there were stipulations of testimony admitted into evidence from which the surrounding circumstances appeared substantially less aggravating than the actual facts.

CONCLUSION

The efforts of defense counsel as respects the sentence have been given consideration in determining the overall effectiveness of the accused's representation by his counsel. For example, in one case 1o the defense counsel, as part of his effort to obtain a favorable pre-trial agreement, but treading rather close to the line dividing good and poor judgment, arranged a pretrial conference between the accused, police personnel and the trial counsel. At this conference the accused made a statement in which he detailed his connection with a number of offenses charged against him. At the same time he revealed information concerning an offense with which he was not then charged but with which he was subsequently charged. That the defense counsel permitted this revelation was later the basis for an appellate claim that the accused had been inadequately represented. In deciding otherwise, the Court of Military Appeals gave heavy consideration and compliments to the activities of defense counsel because that counsel's overall efforts on behalf of the accused resulted in dismissal of a number of the charges and the negotiation of a pre-trial agreement providing for a sentence even less severe than that the accused had previously indicated a willingness to accept.

The writer has found value in the use of a Data Sheet to obtain information concerning

18. 9 USCMA 148, 25 CMR 410 (1958).

19. United States v. Chadwell, 13 USCMA 361, 32 CMR 361 (1962).

the accused to be used in the pre-sentence presentation. The Data Sheet is completed at the earliest opportunity after receipt of an assignment to defend an accused. Use of a similar form is recommended (see Annex A). A letter similar in content to Annex B may be sent to each reference whose name is revealed by the accused. Letters are sent as soon after the first interview as is practicable in order to hasten preparation of the defense.

Sometimes the defense determines to present a story of family hardship, tribulation or misery as part of its case in extenuation. The writer has a suspicion that members of courts-martial tend to view the account as a sort of fairy tale, unless it is verified. Accordingly it is suggested that part of the defense counsel's preparation should include the obtaining of trustworthy material to support a sympathetic appeal. In this connection the American Red Cross facilities are perhaps the best known, but other local organizations will often help. Included in "local organizations" may be the Navy or Marine Reserve in the accused's home area.

Concerning the preparation of the defense case on the sentence, a check list similar to Annex C has been found by the writer to be of value. Annex D is based upon an analysis 20 made by a legal officer in the field several years ago, who, when reviewing a case, noted the absense of efforts by the defense counsel in mitigation and extenuation. It shows what could have been done in that case and furnishes a model argument designed to lessen the impact of derogatory material used by the prosecution. Displaying the ingenuity of a good defense counsel, the comment of this legal officer, accompanying the model argument, suggests also furnishing information concerning the accused's family or concerning family problems. The analysis also suggests that further emphasis might have been placed upon the fact the accused was not a shirker or perhaps that failure of leadership actuated or played a significant part in the commission of offenses. This review pointed out that it is fair to emphasize that the stigma of a bad conduct discharge is a perma

20. Some liberty has been taken with the analysis. The original author is unknown.

nent one which would affect the future of the accused and his innocent family throughout their lives. If the nature of the offense permits, argument may be made that it is not fair to brand the accused with the same stigma attached to thieves, serious criminals and slackers who have refused to serve their country and who have accomplished nothing in life. (At this stage it may be possible to show some proud accomplishment achieved by the accused.)

Instead of arguing against a BCD, some accuseds want to ask to be given a bad conduct discharge. Caution in handling these "BCD strikers" is recommended. Defense counsel would be wise to refuse to make a declaration of this sort on behalf of an accused and of course should try to dissuade the accused from himself asking to be given a BCD. This dissuasion should include, at the very least, advice concerning the life-long effects of a punitive discharge and the specific veterans benefits of which he may be deprived. In the event dissuasion fails, the record of trial 21 should clearly show that the accused makes the request himself or if done by counsel that the counsel is acting upon the accused's instructions. In either event, the defense counsel in open court and for the record should state that the accused has been fully advised by him as to the effects of a BCD and that the course being followed by the accused is contrary to the advice of his counsel. In fact, the best rule for defense counsel to follow is to explain on the record any action which places information which could prejudice the accused before the court-martial.22

Besides being a solemn responsibility, appointment as a trial defense counsel may in any case be made an exciting and challenging occupation. The sentence phase of trial is an opportunity to obtain for an accused a measure of victory. The pre-sentence phase of trial calls for preparation, loyalty to the interests of an accused, courage to accept challenge and provides the opportunity to exercise the ingenuity expected of a qualified military officer who is acquainted with the demands of military justice.

21. ACM S-9680, Lam, 17 CMR 697 (1954). 22. ACM S-3923, Boese, 6 CMR 608 (1952).

ANNEX C

SENTENCE CHECK LIST

A. PREPARATION

1. Go over Personal Data on Charge Sheet for accuracy 2. Review SRB with accused

3. Has accused received NJP or vacation of suspension as a result of any of the instant offenses?

4. Obtain Personal Data Sheet

5. Obtain accused's permission to write references 6. Is a medical or psychiatric examination desirable and agreeable with accused?

7. Is a polygraphic examination desirable and agreeable with accused?

8. Discuss right to obtain witnesses

9. If NCO obtain authorization to obtain copies of fitness reports

10. Suggest the accused prepare unsworn statement for later discussion

11. Discuss conduct in brig if appropriate

12. Check for the accused's possession of a proper uniform and ribbons, etc.

13. Discuss court personnel with accused if known 14. Discuss and explain maximum sentence

15. Discuss and explain pre-trial agreement

B. AT TRIAL IF FINDING OF GUILTY MADE 1. Am I satisfied with efforts to obtain mitigating and extenuating information? Is material ready? Has it been verified?

2. Would a stipulation of facts aid the accused?

3. Can I object to any previous conviction evidence offered?

4. Have I prepared a logical argument urging a limited sentence?

5. Am I prepared with any sentence instruction which I think should be given?

C. IF SENTENCE IS AWARDED

1. Attempt to obtain clemency petition from court members

2. Inform convening authority in writing of any additional matter designed to help him with sentence review (Especially directed toward a probationary suspension)

3. Prepare post-trial argument on sentence to be addressed to convening authority

4. Discuss with the accused the possibilities of a posttrial interview

ANNEX D

MODEL SENTENCE ARGUMENT

This accused has served ten years in the naval service. He had almost completed his second enlistment at the time of the instant absence offense. This accused is not a man who has sought to shirk his duty to

his country by avoiding military service. On the contrary, this accused served on active duty, and served | honorably for many years.

His honorable service is reflected in the fact that during his last enlistment, he achieved the rate of EN2, and satisfactorily performed and was re-enlisted in that rate. However you have been shown that on 6 May 1960, the accused was tried for three very minor absence offenses and for the offense of making a false special liberty pass. You should examine this case in detail, as this is one of the two court-martial convictions presented to this court in the effort to justify additional punishment. The absence offenses consisted of an absence from 0200 to 0635 on 13 April, from 0200 to 0625 on 15 April, and from 0200 to 0625 on 21 April 1960. From the hours indicated, it appears probable that none of these absence offenses involved any effort to avoid or be absent from duty; on the contrary, each offense commenced at 0200 hours and was terminated on or before 0635 hours in the morning. Accordingly, it would appear that these offenses arose from an effort to stay out beyond normal liberty hours. For these offenses, the accused was tried by special court-martial, and he received a sentence to restriction for two months, forfeiture of $95.00 per month for two months and reduction to rate from EN2 to EN3, however, the reduction was suspended for six months.

Six months and two days after his prior court-martial, the accused was involved in a minor incident (not warranting any court-martial action), and this resulted in the vacation of his probation thereby reducing the accused to EN3. [This action was legal, since the six month probation ran from the date of the convening authority's action, which was six days later than the date of trial.]

On 2 March 1961, almost 10 months after his special court-martial for the minor absences we have noted, the accused was involved in an unauthorized absence which consisted of absence on 2 March from 0100 to 1420 hours and from 1730 hours on 2 March to 2255 hours on 3 March. The accused was tried by summary court-martial and was awarded confinement at hard labor for 15 days and reduction to ENFN.

With respect to both these prior convictions, it is respectfully urged that the accused was fully punished by the action of the court for these minor offenses and that it would be unjust to now consider them as the basis for imposing a bad conduct discharge in this case. Without these prior convictions, such punishment would not be legally permissible for the instant offense, and I urge that considering the accused's 10 years of honorable service, these previous minor absence offenses for which he was more than amply punished should not be used by this court to destroy the whole future life of this man and his family by imposing a bad conduct discharge. A bad conduct discharge is, in my view, not justified and you are urged to reject such a punishment as being inappropriate.

U.S. GOVERNMENT PRINTING OFFICE :1965