U.S. v. McConnell, 55 M.J. 479

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

1. Court declines to address the effectiveness of appellant’s two lawyers separately or solely upon the conduct of lead counsel; where there are multiple defense counsel, the performance of defense counsel is measured by the combined efforts of the defense team as a whole
2. there is a two-pronged test to analyzing claims of ineffective assistance of counsel: first, appellant must show that counsel’s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense
3. in analyzing claims of ineffective assistance of counsel, Court of Appeals for the Armed Forces has asked three questions: (1) are the allegations made by appellant true, and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case; (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?
4. the performance and prejudice prongs of the test for ineffective assistance of counsel can be analyzed independently; the Court can test allegations of ineffectiveness for prejudice by assuming that the errors alleged satisfy the deficient performance prong and then considering whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt
5. because counsel are presumed competent, an appellant must rebut this presumption by showing specific errors that were unreasonable under prevailing professional norms
6. when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious
7. where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to make a motion to suppress appellant’s pretrial statement, appellant failed to meet his burden to show that the motion would have been meritorious where the evidence was appellant’s word against that of an investigator in possession of a signed investigative form advising appellant of the offense under investigation
8. where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to investigate and attack the credibility of the complaining victim, and appellant could not offer specific assertions as to what witnesses would have said regarding the victim’s credibility, the Court could not reliably assess whether the outcome of the trial would have been different had such evidence been presented, and appellant thus failed to meet his burden of showing prejudice
9. where an appellant takes part in formulating the trial strategy and has given counsel reason to believe that pursuing certain investigations would be fruitless, counsel’s failure to pursue those investigations may not later be challenged as unreasonable
10. where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to use good military character evidence, counsel’s decision to forego such evidence on the merits in order to preserve its strength for sentencing had a reasonable, tactical basis; while appellant may disagree with the decision in retrospect, it did not fall below the objective standard of reasonableness
11. where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to make a motion in limine to prevent the members from hearing testimony of explicit sexual conversations appellant had with the victim of his offense, appellant failed to sustain his burden of showing prejudice because the victim’s testimony and appellant’s pretrial admissions, when weighed against the victim’s references to appellant’s sexually explicit remarks, evidence no reasonable possibility that had the statements been excluded, the factfinder would have had a reasonable doubt regarding appellant’s guilt
12. where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to make an opening statement, appellant failure to meet his burden of showing prejudice where, in light of the evidence against appellant, there was no reasonable probability that the members would have had a reasonable doubt regarding his guilt had an opening statement been made

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

1. Court declines to address the effectiveness of appellant’s two lawyers separately or solely upon the conduct of lead counsel; where there are multiple defense counsel, the performance of defense counsel is measured by the combined efforts of the defense team as a whole
2. there is a two-pronged test to analyzing claims of ineffective assistance of counsel: first, appellant must show that counsel’s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense
3. in analyzing claims of ineffective assistance of counsel, Court of Appeals for the Armed Forces has asked three questions: (1) are the allegations made by appellant true, and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case; (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?
4. the performance and prejudice prongs of the test for ineffective assistance of counsel can be analyzed independently; the Court can test allegations of ineffectiveness for prejudice by assuming that the errors alleged satisfy the deficient performance prong and then considering whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt
5. because counsel are presumed competent, an appellant must rebut this presumption by showing specific errors that were unreasonable under prevailing professional norms
6. when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious