U.S. v. Grigoruk, 52 M.J. 312

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. there is a three-part test to determine if the presumption of competence has been overcome: (1) are the appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and, (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result
2. defense counsel will not be compelled to justify decisions made at trial until a court of competent jurisdiction reviews the allegation of ineffectiveness and the government response, examines the record, and determines that the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence
3. appellant met threshold for ordering further inquiry into a claim of ineffective representation where, although defense counsel established factual predicate for expert testimony and prevailed on a contested motion to compel the employment of an expert for the defense, defense counsel inexplicably did not call the defense employed expert or any expert to challenge victim’s credibility
4. failure to cross-examine CID agents is not ineffective representation, in the absence of evidence showing what that cross-examination might reasonably have accomplished
5. stipulating to medical doctor’s testimony is not ineffective representation, in the absence of a showing that her testimony in person would have been more favorable to appellant