U.S. v. Thompson, 51 M.J. 431

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. to prevail on a conflict of interest claim, appellant must demonstrate that defense counsel faced an actual conflict of interest which affected the adequacy of the attorney’s representation
2. accused’s complaint about defense counsel’s performance may in certain circumstances create a conflict of interest; however, where such a complaint is resolved by the accused and his counsel, defense counsel is freed from the competing interests which constitute the conflict
3. while complaint by accused’s wife may have created a potential conflict, action by defense counsel in quickly discussing matter with accused, determining that accused did not make complaint, and ascertaining that accused was satisfied with the quality of his representation, rendered defense counsel mentally free from competing interests and avoided actual conflict
4. test for ineffective assistance of counsel requires appellant to demonstrate deficient performance and that the deficiency prejudiced the defense to such an extent that appellant was denied a fair trial
5. no prejudicial error found in detailed defense counsel’s advice to accused concerning right to civilian counsel
6. appellant’s claim that defense counsel was inadequate by discouraging appellant from seeking assistance of psychologist did not provide sufficient factual basis for legal relief where facts revealed that the request for mental health assistance was for treatment during the pretrial and trial process without showing that the absence of this treatment prejudiced appellant at trial
7. defense counsel’s advice concerning impact of seeking psychological treatment was substantially correct in that military law did not then recognize a psychotherapist-patient privilege and disclosures made during treatment could possibly be used against accused
8. defense counsel’s advice to avoid unprivileged psychological assistance was a reasonable tactical decision which will not be second-guessed where unprivileged disclosures could be used against the accused and evidence was presented during sentencing which was similar to that contained in post-trial mental health report

Core Criminal Law Subjects: Evidence: Privileges › Psychotherapist-patient privileges

1. defense counsel’s advice concerning impact of seeking psychological treatment was substantially correct in that military law did not then recognize a psychotherapist-patient privilege and disclosures made during treatment could possibly be used against accused

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. test for ineffective assistance of counsel requires appellant to demonstrate deficient performance and that the deficiency prejudiced the defense to such an extent that appellant was denied a fair trial
2. to prevail on a conflict of interest claim, appellant must demonstrate that defense counsel faced an actual conflict of interest which affected the adequacy of the attorney’s representation