U.S. v. Lee, 52 M.J. 51

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

1. the right to effective representation extends to post-trial proceedings where defense counsel is responsible for post-trial tactical decisions, but he should act after consultation with the client were feasible and appropriate, and he may not submit matters over the client’s objection
2. it was not necessary to decide if defense counsel was deficient by not resolving the inconsistency in appellant’s post-trial clemency submission, because appellant did not show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been any different
3. the standard of prejudice for errors in post-trial representation is low because of the highly discretionary nature of the convening authority’s clemency power, and appellant need only make some colorable showing of possible prejudice resulting from the error
4. any error in the post-trial representation of appellant arising from the fact that defense counsel did not support appellant’s request for disapproval of the dishonorable discharge and substitute of a general discharge was not prejudicial to appellant’s substantial rights where the record demonstrated that the convening authority would not have disapproved the dishonorable discharge, because he was unwilling to take the lesser step of commuting it to a bad-conduct discharge

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

1. to overcome the presumption of competence, an appellant must show that defense counsel was deficient, and that he was prejudiced by the deficiency; issues of effective representation are reviewed de novo