U.S. v. Anderson, 55 M.J. 198

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

1. to prevail on a claim of ineffectiveness of counsel, an appellant must show that counsel’s performance as deficient and that the deficient performance prejudiced the defense
2. counsel are presumed competent, and to overcome this presumption an appellant must show that counsel made specific errors that were unreasonable under prevailing professional norms
3. there is a three-part test to determine if the presumption that counsel was competent has been overcome: (1) are 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 were ineffective, is that a reasonable probability that, absent the errors, there would have been a different result
4. ineffectiveness of counsel is a mixed question of law and fact; factual findings are reviewed under a clearly-erroneous standard of review, but the ultimate determinations whether counsel were ineffective and whether their errors were prejudicial are reviewed de novo
5. a particular decision by counsel not to investigate must be directly assessed for reasonableness in all the circumstances applying a heavy measure of deference to counsel’s judgments
6. while the appellate court will not second guess the tactical decisions made at trial by defense counsel, where it is not apparent what decisions were made or even that a strategic or tactical decision was made, further inquiry may be required
7. an unequivocal concession of guilt by counsel can so undermine the adversarial process as to obviate the need for a separate showing of prejudice in support of a claim of ineffective assistance of counsel
8. conflicting affidavits on an issue of ineffectiveness of counsel may not be resolved without a factfinding hearing, unless: (1) the facts alleged by the appellant would not result in relief even if true; (2) the appellant does not assert specific facts but only speculative or conclusionary observations; (3) the appellant’s factual assertions are not contested; (4) the record as a whole compellingly demonstrates the improbability of the facts asserted by the appellant; or (5) the appellant’s factual assertions contradict statements made by the appellant on the record and the appellant does not rationally explain why he would have made such statements at trial but not upon appeal
9. Court determined that a factfinding hearing was necessary to resolve contradictions between the affidavits of counsel and those presented by appellant where: (1) there remain questions about the adequacy of trial defense counsel’s pretrial investigation into the circumstances surrounding the accusations against appellant; (2) hearing would give defense counsel opportunity to explain tactical reason for not calling a defense witness; (3) further factual inquiry would provide defense counsel an opportunity to explain pretrial strategy and explain why a witness was not interviewed earlier; (4) further inquiry is needed into the likelihood that expert could have interviewed and evaluated child victim and obtained evidence favorable to appellant; and (5) the effects of defense counsel’s arguments, which were susceptible of being interpreted as concessions, warranted further evaluation after factual disputes are resolved

Military Justice Personnel: Military Judge: General Powers

1. military judge lacks inherent power to compel a victim to undergo nonconsensual examination, but the military judge and a trial counsel can use the persuasive powers of their offices to secure the witness’ consent to such examination

Core Criminal Law Subjects: Witnesses: Production of

1. military judge lacks inherent power to compel a victim to undergo nonconsensual examination, but the military judge and a trial counsel can use the persuasive powers of their offices to secure the witness’ consent to such examination

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

1. conflicting affidavits on an issue of ineffectiveness of counsel may not be resolved without a factfinding hearing, unless: (1) the facts alleged by the appellant would not result in relief even if true; (2) the appellant does not assert specific facts but only speculative or conclusionary observations; (3) the appellant’s factual assertions are not contested; (4) the record as a whole compellingly demonstrates the improbability of the facts asserted by the appellant; or (5) the appellant’s factual assertions contradict statements made by the appellant on the record and the appellant does not rationally explain why he would have made such statements at trial but not upon appeal

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

1. ineffectiveness of counsel is a mixed question of law and fact; factual findings are reviewed under a clearly-erroneous standard of review, but the ultimate determinations whether counsel were ineffective and whether their errors were prejudicial are reviewed de novo