U.S. v. Bolkan, 55 M.J. 425

Military Justice Personnel: Defense Function: Responsibilities

1. the ethical responsibility to diligently represent an accused at trial requires a wide range of professional decisions, including what evidence to present and what arguments to make; however, the accused has control of the plea, pretrial agreement, questions as to forum, right to testify, and whether to appeal

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

1. when defense counsel’s advocacy falls short of that required to render effective assistance of counsel, the court will test for prejudice

Trial Stages: Sentence and Punishment: Argument

1. when the accused asks the sentencing authority to be allowed to remain on active duty, defense counsel errs by conceding the propriety of a punitive discharge
2. assuming that defense counsel conceded the appropriateness of a punitive discharge and that the military judge erred in not conducting an inquiry into whether defense counsel’s argument reflected appellant’s desires, any error was harmless where: (1) defense counsel’s argument made a strategic decision recognizing that if the members must choose between confinement and a bad-conduct discharge, they should give appellant the punitive discharge; (2) defense counsel was realistic in her approach by accepting the force of adverse facts; and, (3) this was a case in which there was no reasonable probability of retention in the service

Trial Stages: Appeals: Harmless / Prejudicial Error

1. assuming that defense counsel conceded the appropriateness of a punitive discharge and that the military judge erred in not conducting an inquiry into whether defense counsel’s argument reflected appellant’s desires, any error was harmless where: (1) defense counsel’s argument made a strategic decision recognizing that if the members must choose between confinement and a bad-conduct discharge, they should give appellant the punitive discharge; (2) defense counsel was realistic in her approach by accepting the force of adverse facts; and, (3) this was a case in which there was no reasonable probability of retention in the service

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

1. when defense counsel’s advocacy falls short of that required to render effective assistance of counsel, the court will test for prejudice