Today I reviewed United States v. Palenius, 2 M.J. 86 (CMA 1977), attempting to view a slow-motion replay of that special moment in the relay-race when appellate defense counsel takes the baton from the trial defense counsel. I presumed that trial defense counsel was effectively (and legally) “relieved” and his/her representational duties terminated upon the proper designation of appellate defense counsel. I may be wrong. Palenius says that the original trial defense attorney must make “an application” with the judge or court then having jurisdiction over the case “to be relieved of the duty of further representation of the convicted accused.”

Uhhh…does anybody do this? (Please forward the form letter if you do)

Since CCA only has the budget for a “denied” stamp, I have never heard of such “applications” for relief being submitted, nevermind granted. Is the entire military justice world just ignoring this Palenius command? I doubt that, too.

Two Palenius‘ problems. First, what if the government does not want the trial counsel to be “relieved”? Second, what if the trial defense counsel does not want to be “relieved”? Palenius simply assumes that clients are a pain-in-the-ass and that any self-respecting lawyer would want to quit as soon as possible. This need not be true.

The trial world stands on one tectonic plate. The appellate world stands on another. At times, these tectonic plates abut without incident, sometimes they separate and cause gaps, and at other times, these two worlds collide.

Does anybody know of an instruction, regulation, rule, or a case that obviates the apparent “application for relief” rule in Palenius?

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