U.S. v. Burt, 56 M.J. 261

Military Justice Personnel: Defense Function: Responsibilities

1. To be an effective advocate, trial defense counsel is required to discuss with an accused the various components of a military sentence, i.e., confinement, discharge, reduction in rank, and forfeitures, and after such counseling and in accordance with his client’s wishes, zealously represent his or her client
2. (effective advocacy requires an astute, reflective evaluation of a set of circumstances with rational, tactical trial choices flowing therefrom

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

1. counsel errs by conceding the appropriateness of a punitive discharge when an accused wishes to remain in the service or otherwise avoid such a separation
2. defense counsel was not ineffective when his tactical approach during argument was to show that appellant had legitimately earned his retirement through twenty years of faithful, honorable service, and it was only after appellant’s retirement vested that he “went bad”
3. defense counsel’s tactical decision to reject the proposed instruction concerning loss of retirement benefits represented a logical choice which forced the members to come to grips with the hard decision of whether to impose a punitive discharge and strip appellant of his retirement pay and benefits without being told (and perhaps reassured) that the Secretary of the Air Force could override their sentence and allow appellant to retire and receive the fruits of that retirement

Trial Stages: Sentence and Punishment: Argument

1. counsel errs by conceding the appropriateness of a punitive discharge when an accused wishes to remain in the service or otherwise avoid such a separation

Trial Stages: Sentence and Punishment: Instructions

1. defense counsel’s tactical decision to reject the proposed instruction concerning loss of retirement benefits represented a logical choice which forced the members to come to grips with the hard decision of whether to impose a punitive discharge and strip appellant of his retirement pay and benefits without being told (and perhaps reassured) that the Secretary of the Air Force could override their sentence and allow appellant to retire and receive the fruits of that retirement

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

1. claims of ineffective assistance of counsel are reviewed de novo
2. claims of ineffective assistance of counsel are reviewed under a two-prong test: first, the defendant must show that counsel’s performance was deficient; and second, the defendant must show that the deficient performance prejudiced the defense