U.S. v. Dewrell, 55 M.J. 131

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

1. to establish a claim of ineffectiveness, the defendant must show that counsel’s performance was deficient – that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment – that counsel’s representation fell below an objective standard of reasonableness – that performance was unreasonable under prevailing professional norms considering all the circumstances
2. judicial scrutiny of counsel’s performance must be highly deferential; counsel is strongly presumed to have given adequate representation
3. the prejudice prong of the test for ineffective assistance of counsel requires that the defendant demonstrate that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable
4. although appellant claimed that defense counsel failed to attack the credibility of government witnesses, the record of trial shows that defense counsel did engage in cross-examination and acted to minimize potentially damaging testimony; additionally, appellant’s claims about a witness’s advanced sexual knowledge are unsubstantiated, and, even though appellant was the only one in a position to factually challenge a given witness, he did not do so either during or after trial
5. although appellant claimed that defense counsel did not take adequate measures to limit the spillover effect of certain testimony, the spillover instruction given by the military judge was adequate and presumably followed by the members
6. although appellant claimed that defense counsel did not do enough to inform the members about the precise consequences of a punitive discharge, the nature of appellant’s felony conviction, the evidence presented during sentencing, the military judge’s instructions, and the argument of counsel demonstrate that the members had sufficient information to understand the ramifications associated with awarding appellant a punitive discharge
7. although appellant claimed that defense counsel failed to present a case on findings by not allowing appellant to testify, appellant’s failure to speak up at or after trial belies his assertion that his desire to testify was improperly cut off by his counsel, and the record and appellate filings compellingly demonstrated the improbability of appellant’s assertions
8. although appellant claimed that his counsel failed to present a good soldier defense, this was a tactical decision; deciding to forgo live witnesses in order to avoid potentially damaging evidence being brought in under cross-examination does not amount to incompetence
9. with respect to claims of ineffective assistance of counsel, barebones assertions of a defendant, albeit made under oath, are insufficient to require a hearing; some greater particularity is necessary to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim
10. in assessing claims of ineffective assistance of counsel, the appellate court does not look at the success of a criminal defense attorney’s trial theory, but rather at whether counsel made an objectively reasonable choice in strategy from the alternatives available at the time

Core Criminal Law Subjects: Evidence: Balancing

1. military judge’s careful and reasoned analysis on the record satisfied the constitutional requirement that evidence offered under Mil. R. Evid. 413 be subjected to a thorough balancing test pursuant to Mil. R. Evid. 403
2. when the judge does not articulate the balancing analysis on the record, his evidentiary ruling is given less deference than where the balancing analysis is fully articulated on the record

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. military judge’s careful and reasoned analysis on the record satisfied the constitutional requirement that evidence offered under Mil. R. Evid. 413 be subjected to a thorough balancing test pursuant to Mil. R. Evid. 403
2. evidence of uncharged other sexual misconduct was properly admitted where: (1) the threshold findings were met under Mil. R. Evid. 413; (2) the evidence was found to be relevant to the immediate charged under Mil. R. Evid. 401 and 402; and (3) the military judge clearly found that the probative value of specific portions of the testimony outweighed any prejudicial effect, as required under Mil. R. Evid. 403

Trial Stages: Merits: Trial Procedures › Voir dire

1. claim that military judge erred by refusing to allow the defense to conduct any group voir dire is reviewed for abuse of discretion
2. neither the UCMJ nor the Manual for Courts-Martial gives the defense the right to individually question the members
3. military judge did not abuse his discretion in refusing to permit defense counsel to question members where the questions posed by the military judge properly tested for a fair and impartial panel, allowed counsel to intelligently exercise challenges, and were adequate to cover the statutory qualification of the members

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. a hearing pursuant to United States v. Ginn, 47 MJ 236 (1997), is not required where the issues may be resolved based on the appellate filings and the record

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

1. military judge’s ruling admitting uncharged other sexual misconduct under Mil. R. Evid. 404(b), 413, and 414 is reviewed under an abuse of discretion standard
2. judicial scrutiny of counsel’s performance must be highly deferential; counsel is strongly presumed to have given adequate representation
3. claim that military judge erred by refusing to allow the defense to conduct any group voir dire is reviewed for abuse of discretion