26-1038

26-1038. Duties of trial counsel and defense
counsel

A. The trial counsel of a general or special court-martial shall prosecute in the
name of the state and shall prepare, under the direction of the court, the record of the
proceedings.

B. The accused has the right to be represented in his defense before a general or
special court-martial or at an investigation as provided in this section.

C. The accused may be represented by civilian counsel if provided by him.

D. The accused may be represented by military counsel detailed under section
26-1027 or by military counsel of his own selection if that counsel is reasonably
available.

E. If the accused is represented by civilian counsel, military counsel shall act as
associate counsel unless excused at the request of the accused.

F. Except as provided by subsection G of this section, if the accused is
represented by military counsel of his own selection, any military counsel detailed shall
be excused.

G. The accused is not entitled to be represented by more than one military
counsel. However, the person authorized under rules adopted under section 26-1027 to
detail counsel in his sole discretion:

1. May detail additional military counsel as assistant defense counsel.

2. If the accused is represented by military counsel of his own selection, may
approve a request from the accused that military counsel detailed act as associate
defense counsel.

H. The adjutant general, by rule, shall define "reasonably available" for the
purpose of subsection D of this section and establish procedures for determining whether
the military counsel selected by an accused is reasonably available. These rules shall
not prescribe any limitation based on the reasonable availability of counsel solely on
the grounds that the counsel selected by the accused is from a component of the national
guard other than the component of which the accused is a member. To the maximum extent
practicable, these rules shall be consistent with the regulations governing the military
forces of the United States.

I. In any court-martial proceeding resulting in a conviction, the defense counsel
may:

1. Forward for attachment to the record of proceedings a brief of those matters he
determines should be considered in behalf of the accused on review, including any
objection to the contents of the record which he considers appropriate.

2. Assist the accused in the submission of any matter under section 26-1060.

3. Take other action authorized by this chapter.

J. Under the direction of the trial counsel or if he is qualified to be a trial
counsel, an assistant trial counsel of a general court-martial may perform any duty
imposed by law, rule or the custom of the service on the trial counsel of the court. An
assistant trial counsel of a special court-martial may perform any duty of the trial
counsel.

K. Under the direction of the defense counsel or if he is qualified to be the
defense counsel, an assistant defense counsel of a general or special court-martial may
perform any duty imposed by law, rule or the custom of the service on counsel for the
accused.