U.S. v. Gilley, 56 M.J. 113

Military Justice Personnel: Defense Function: Responsibilities

1. responsibility for tactical and strategic post-trial decisions are within the control of counsel who must make an evaluative judgment on what items to submit to the convening authority and to so advise the client

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

1. in the military, the Sixth Amendment right to effective assistance of counsel extends to assistance in the preparation and submission of post-trial matters
2. to determine if the presumption of competence of counsel has been overcome, the court will apply a three-prong test: (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 a defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result
3. counsel failed to provide an evaluative judgment, fell measurably below the performance ordinarily expected of fallible counsel, and provided ineffective post-trial assistance where counsel submitted twelve items to the convening authority and among those items were: a letter from appellant’s mother that undercut appellant’s plea for clemency; a letter from appellant’s father both acerbic and a scathing diatribe; and an e-mail from appellant’s brother that echoed the theme of appellant’s father’s letter
4. defense counsel provided ineffective post-trial assistance by submitting to the convening authority letters containing a scathing denouncement of the military justice system and its participants; the error was prejudicial in that there was a reasonable probability that, absent the letters, there would have been a different result or, at the very least, a meaningful clemency hearing

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. the government may not use a defendant’s assertion of his Fifth Amendment rights as substantive evidence against him, and under Mil.R.Evid. 301(f)(3) this prohibition applies equally to both comments on the accused’s right to remain silent and comments on the accused’s right to counsel, both of which flow from the Fifth Amendment
2. violations of the prohibition against commenting on the accused’s assertion of his Fifth Amendment rights are subject to harmless error review
3. the government is permitted to make "a fair response" to claims made by the defense, even when a Firth Amendment right is at stake
4. where prosecutorial comments are a fair response to a claim made by the defendant or his counsel, there is no violation of the Fifth Amendment privilege against self-incrimination
5. reference to appellant’s request for counsel may have fairly rebutted the defense theory concerning pretrial statement and was not used as substantive evidence of guilt against appellant; even if it was error to allow the testimony, given the context in which the issue arose here, court found no material prejudice to appellant’s substantial rights and, thus, no plain error
6. because appellant failed to object to testimony that he did not read written statement and requested counsel, and since the testimony contradicted appellant’s claim that he read the statement but refused to sign it because it was full of lies, court found that defense counsel opened the door to the use of this testimony for that limited purpose

Core Criminal Law Subjects: Evidence: Waiver

1. in the absence of objection, issues of admissibility of evidence are waived, and appellate court will grant relief only if the admission of such evidence constitutes plain error

Trial Stages: Merits: Argument

1. where prosecutorial comments are a fair response to a claim made by the defendant or his counsel, there is no violation of the Fifth Amendment privilege against self-incrimination
2. to determine whether or not prosecutorial comments are fair, the comments are examined in context, and invoke consideration of the "invited response" or "invited reply" rule to assess whether, viewed in the context of the entire trial, defense counsel’s comments clearly invited the reply
3. trial counsel’s argument, which consisted of repeated references to appellant’s request for counsel, could have reflected negatively upon the invocation of those rights by leading the members to attach a significance to such invocation that went beyond fair rebuttal of appellant’s allegation

Trial Stages: Appeals: Invited Error / Open Door

1. because appellant failed to object to testimony that he did not read written statement and requested counsel, and since the testimony contradicted appellant’s claim that he read the statement but refused to sign it because it was full of lies, court found that defense counsel opened the door to the use of this testimony for that limited purpose

Trial Stages: Appeals: Preservation of Error / Plain Error

1. reference to appellant’s request for counsel may have fairly rebutted the defense theory concerning pretrial statement and was not used as substantive evidence of guilt against appellant; even if it was error to allow the testimony, given the context in which the issue arose here and the lack of objection, court found no material prejudice to appellant’s substantial rights and, thus, no plain error
2. where defense counsel did not object to trial counsel’s repeated references to appellant’s request for counsel or request a curative instruction, relief will be granted only if the military judge’s failure to instruct sua sponte was plain error
3. although trial counsel’s argument made repeated references to appellant’s pretrial request for counsel, court found no material prejudice to appellant’s substantial rights, and thus no plain error, where: (1) defense counsel’s failure to object or request curative instructions was relevant to a determination of prejudice and some measure of the minimal impact of trial counsel’s statements; (2) there was overwhelming evidence of guilt; and (3) appellant’s exculpatory story was implausible

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

1. violations of the prohibition against commenting on the accused’s assertion of his Fifth Amendment rights are subject to harmless error review
2. to determine if the presumption of competence of counsel has been overcome, the court will apply a three-prong test: (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 a defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result