Assertions of Ineffective Assistance of Counsel

Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer

United States v. Lewis , 42 M.J. 1 (C.A.A.F. 1995). Counsel’s refusal to submit handwritten letter as part of post-trial matters was error. Counsel may advise client on contents of post-trial matters but final decision is the client’s. The CAAF rejects the ACCA’s procedures for handling IAC allegations, originally set out in United States v. Burdine , 29 M.J. 834 (A.C.M.R. 1989). Trial defense counsel should not be ordered to explain their actions until a court reviews the record and finds sufficient evidence to overcome the presumption of competence.

• United States v. Burdine , 29 M.J. 834 (A.C.M.R. 1989). Two key points:
  1. When the accused specifies error in his request for appellate representation or insome other form, appellate defense counsel will, at a minimum, invite the attention of the CCA to those issues and it will, at a minimum, acknowledge that it has considered those issues and its disposition of them.
  2. Guidelines for resolving IAC allegations:
     1. Appellate counsel must ascertain with as much specificity as possible grounds for IAC claim.
     2. Appellate defense counsel then will allow the appellant the opportunity to make his assertions in the form of an affidavit (explaining the affidavit is not a requirement, but also pointing out that it will “add credence” to his allegations).
     3. Appellate defense counsel advises the accused that the allegations relieve the DC of the duty of confidentiality with respect to the allegations.
     4. Appellate government counsel will contact the DC and secure affidavit in response to the IAC allegations.
• United States v. Dresen , 40 M.J. 462 (C.M.A. 1994). Counsel’s request, in clemencypetition, for punitive discharge was contrary to wishes of accused and constituted inadequate post-trial representation. Returned for new PTR and action.
• United States v. Pierce , 40 M.J. 149 (C.M.A. 1994). Factual dispute as to whether DCwaived accused’s right to submit matters to the CA. Held: where DC continues to represent accused post-trial, there must be some showing of prejudice before granting relief based on premature CA action. Any error by failing to secure accused’s approval of waiver was not prejudicial in this case.
• United States v. Aflague , 40 M.J. 501 (A.C.M.R. 1994). Where there is no logical reason forcounsel’s failure to submit matters on behalf of an accused and where the record glaringly calls for the submission of such matters, the presumption of counsel effectiveness has been overcome and appellate court should do something to cleanse the record of this apparent error.
• United States v. Robertson , 39 M.J. 211 (C.M.A. 1994). Defense counsel submitted no post-trial clemency/response documents. Accused did not meet burden of showing that counsel did not exercise due diligence.
• United States v. Carmack , 37 M.J. 765 (A.C.M.R. 1993). Defense counsel neglected tocontact accused (confined at USDB) regarding post-trial submissions. Court admonished all defense counsel to live up to post-trial responsibilities; also, admonished SJAs and CAs to “clean up the battlefield” as much as possible.
• United States v. Sanders , 37 M.J. 628 (A.C.M.R. 1993). Court unwilling to adopt per se rulethat DCs must submit post-trial matters in all cases.
• United States v. Jackson , 37 M.J. 1045 (N.M.C.M.R. 1993). Since clemency is sole prerogative of CA, where defense counsel is seriously deficient in post-trial representation, court reluctant to substitute its judgment for that of CA.
•   United States v. Gilley , 56 M.J. 113 (C.A.A.F. 2001). IAC in submitting three post-trial documents which were not approved or reviewed by appellant and which seriously undermined any hope of getting clemency; the CAAF also found IAC in counsel’s trial performance.
• United States v. Key , 57 M.J. 246 (C.A.A.F. 2002). Without holding, the CAAF hints that counsel may be ineffective if they fail to advise the client on his post-trial right to request waiver of forfeitures for the benefit of his dependents.
• United States v. Starling , 58 M.J. 620 (N-M. Ct. Crim. App. 2003). The appellant was not denied post-trial effective assistance of counsel by his counsel’s failure to submit clemency matters. The court went on to establish a prospective standard for handling IAC allegations resulting from a failure to submit evidence on sentencing or during post-trial: [A]bsent a clear indication of inaction by the defense counsel when action was compelled by the situation, future claims of inadequate representation for failure to exercise sentencing rights or post-trial rights will not be seriously entertained without the submission of an affidavit by the appellant stating how counsel’s inaction contrasted with his wishes. If the claim involves the failure to submit matters for consideration, the content of the matters that would have been submitted must be detailed. Id . at 623.
• Diaz v. The Judge Advocate General of the Navy , 59 M.J. 34 (C.A.A.F. 2003). Article 66, UCMJ, and Due Process entitle appellants to timely post-trial and appellate review. In so holding, the court noted the following: “the standards for representation of servicemembers by military or civilian counsel in military appellate proceedings are identical” and the “duty of diligent representation owed by detailed military counsel to servicemembers is no less than the duty of public defenders to indigent civilians.” Id . at 38-39. Finally, the differences between the military justice system as compared to the civilian system, to include the [military] appellate courts’ unique fact finding authority, compel even “greater diligence and timeliness than is found in the civilian system.” Id . at 39. See also United States v. Brunson , 59 M.J. 41 (C.A.A.F. 2003) (counsel have a duty to aggressively represent their clients before military trial and appellate courts, late filings and flagrant or repeated disregard for court rules subject the violator to sanctions). Id . at 43.

Representing Guilty Clients: How do defense lawyers sleep at night?