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.