United States v. Weatherford

[425] Opinion of the Court Quinn, Chief Judge: The question presented by the certificate of the Judge Advocate General of the Navy is whether defense counsel can ever properly argue at trial that a punitive discharge is an appropriate punishment for an accused. Defense counsel cannot ask the court-martial to impose a punitive discharge when the express 0r implied desire of the accused is to the contrary. United States v Garcia, 18 USCMA 5, 39 CMR 5 (1968); United States v Mitchell, 16 USCMA 302, 36 CMR 458 (1966). In this case, the United States Navy Court of Military Review noted that defense counsel’s argument, material excerpts of which appear in the Appendix to this opinion, conformed to the specific directions of the accused and accorded with the “professional” recommendation of the accused’s mother, who was Director of Freshman Studies and Chairman of the Department of Mathematics of Saint Augustine’s College and had extensive experience with “student problems.”1 However, the Court of Military Review concluded that, as a matter of law, defense counsel “goes too far when he affirmatively assists . . . [an accused] in developing his plea for a punitive discharge.” An accused has the right to address the sentencing authority in regard to the sentence. As part of that right, he may ask for one kind of punishment to the exclusion of other permissible penalties. The question then is whether he can enlist his counsel’s aid to effectuate his plea. Since counsel is bound to represent the interests of his client with all his skill, it is arguable that he must accede to his client’s wishes in every case. Certainly, there are instances where accession is in the client’s best interest. In United States v Blunk, 17 USCMA 158, 160, 37 CMR 422 (1967), we held that defense counsel “violates no legal or ethical principle in . . . following . . . instructions to present nothing on” the accused’s behalf which might influence the court-martial to reject a punitive discharge as an appropriate punishment. Still, defense counsel is not the alter ego of the accused. There are occasions when he, not the accused, must determine his course of conduct, without impairing his obligation to represent the accused. For example, we entertain no doubt that defense counsel can refuse to argue that a death sentence would be better for the accused and society than a period of confinement. The accused can himself declare that he would rather be hanged than imprisoned, but we do not conceive that counsel’s devotion to the accused’s interests requires him to obey the accused’s command that he join in the declaration. A lawyer has no duty to put the hangman’s noose around his client’s neck. In numerous cases we have commented on the severity of a punitive discharge. It is not just an opprobrious form of separation from the armed forces, but it has many and long-continued adverse consequences even [426] in civilian life. See United States v Wheeler, 17 USCMA 274, 276, 38 CMR 72 (1967). In the first instance, therefore, we must assume that no one really wants to effect his separation from the service in that way. The punitive discharge has been viewed as the “equivalent” of a death sentence. United States v Prow, 13 USCMA 63, 64, 32 CMR 63 (1962). The analogy is appropriate so far as it deals with the individual’s relationship to the military community and whether a period of confinement can properly be regarded as a less severe punishment than a punitive discharge. However, a punitive discharge is not the end of life. It may close many doors and foreclose many opportunities, but life continues, and opportunities for individual fulfillment may be presented despite the stigma of the discharge. It is not hard to imagine an accused convicted of multiple offenses of disrespect to superior officers and willful disobedience of orders to desire a punitive discharge, without other penalties. The limits of punishment for these offenses would strongly indicate the probability of a sentence to both confinement and discharge. Cf. United States v Mitchell, supra, page 304. The accused may acknowledge his failure to carry out his military duties but still desire to meet his personal responsibilities. He may have a wife and a child to support and he may have a promise of employment. He may, therefore, deem it better to plead for discharge without confinement, than to say nothing and face the risk of confinement with a discharge. A plea of this kind under the circumstances is a plea for life, not death. It is a plea for the right to carry out at least part of one’s responsibilities, not a plea to end them all. In short, it is a plea for leniency, not harshness. It is to the accused’s advantage, therefore, to attempt to persuade the court members that a discharge alone would constitute a fair and appropriate punishment for his crimes. Such a plea is consistent with the concept that the punishment should fit not only the crime, but take into account the peculiar circumstances which merit leniency. See United States v Pierce, 19 USCMA 225, 228, 41 CMR 225 (1970). We conclude, therefore, that, in an appropriate case, defense counsel may properly assist the accused in his attempt to persuade the court-martial to impose no other punishment than a discharge.2 Turning to the circumstances of this case, it appears the accused has been unable to accommodate himself to the requirements of the Navy. He entered on active duty on October 30, 1967. On March 18, 1968, he absented himself without authority until May 17, 1968. A month later, he again absented himself without authority and remained away until July 10, 1968. He was tried for these offenses in August 1968, and the approved sentence included confinement at hard labor for three months, partial forfei [427] ture of pay, and reduction to grade E-l. On December 2, 1968, he once more absented himself, remaining away until January 18, 1969. This offense was followed by another of the same kind which began on January 29, 1969, and was terminated by apprehension on March 5, 1969. A third absence began on April 28, 1969, and was terminated by apprehension on July 18, 1969. The latter three absences were the subjects of the charges before the court-martial. Before trial, the accused conferred with defense counsel and was advised of the dire and lasting consequences of a bad-conduct discharge. “Nonetheless,” he directed defense counsel “to argue for a Bad Conduct Discharge before . . . [the] court-martial.” The accused’s mother was consulted, and as indicated earlier, she testified at trial, which was held on August 13-14, 1969, that she believed confinement “would not be warranted,” but that a discharge might be appropriate. The President of Saint Augustine’s College indicated that the college would accept the accused for the Fall Term, which was to begin on September 11, 1969. It also appeared that the accused faced marital problems that could probably not be dealt with effectively from behind prison bars. Considering the record, we cannot say that a decision to assist the accused in his plea for a punitive discharge without confinement was a breach of counsel’s duty of devotion to the accused. We, therefore, answer in the negative the certified question which asks: “Whether the argument of trial defense counsel on the sentence was prejudicial to the substantial rights of the accused in view of the pretrial direction by the accused to his counsel to argue for a bad conduct discharge.” The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy for resub-inission to the Court of Military Review for further proceedings consistent with this opinion. Judge Darden concurs. Footnotes [1] Among other things, Mrs. Weather-ford testified as follows: “. . . [I]n my capacity as his mother, I would not want him to receive a bad conduct discharge. As a professional person, weighing the fact that one must look at the person’s ability to cope with social situations after the completion of the service, to meet the expected realities of society and to exercise his own mind in meeting personal needs, and adaptability, and so forth, and knowing that he has an opportunity and has a desire to return to college in September if he were able to do this, I would say . . . that I believe that from a professional point of view, knowing that with this court there are two choices, there is one choice of two, I would have to say that I would recommend a discharge.” [2] Many accused may be too emotionally involved to reason about the long-range consequences of a punitive discharge. Also, defense counsel and the accused may disagree as to the weight to be attached to competing factors. These, and related problems, indicate that an affirmative plea for a punitive discharge must be approached with extreme care, and with as fuff an understanding as possible of the present and future situation of the accused. If defense counsel concludes that, in the circumstances of the case and in good conscience, he cannot argue for the kind of sentence the accused desires, he may ask for leave to withdraw as counsel. United States v Blunk, 17 USCMA 158, 37 CMR 422 (1967). A substitution of attorneys at this stage of the proceedings may pose problems, such as the necessity for a continuance or the need for circumspection to avoid the possibility of any inference adverse to the accused, but none of the problems that suggest themselves at this time appear insoluble.