U.S. v. Grigoruk, 56 M.J. 304

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

1. there is a “strong presumption” that counsel was competent; the following three-pronged test is applied to determine if the presumption of competence has been overcome: (1) Are appellant’s allegations true; 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 was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?
2. trial defense counsel was not ineffective in failing to provide certain expert’s testimony because trial defense counsel’s concerns about litigating Dr. Underwager’s credibility as a witness were not unfounded; see Underwager v. Salter, 22 F.3d 730 (7th Cir. 1994); see also Commonwealth v. Perkins, 658 N.E.2d 975, 978 (Mass.App.Ct. 1995); State v. Swan, 790 P.2d 610, 632 (Wash. 1990)
3. there was a reasonable explanation for defense counsel’s decision not to call specific expert where trial defense counsel concluded that he might not need the expert to testify as an expert after the Government decided not to present expert testimony and where he concluded, based on his review of the prosecution’s plan of attack, that the expert’s credibility would be heavily attacked, and that the credibility of the defense case might be undermined if the defense was perceived as using a “quack” as an expert
4. appellant did not overcome the strong presumption of competence regarding the failure of trial defense counsel to request another suitable expert witness where, even though over five years have passed since appellant’s conviction, and his case has worked its way up the appellate chain twice, neither appellant nor his counsel have demonstrated that any other expert could have provided expert testimony sufficient to raise the reasonable probability of a more favorable result

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

1. issues of ineffective assistance of counsel are reviewed de novo

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

1. there is a three-part test to determine if the presumption of competence has been overcome: (1) are the 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 was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result
2. an appellant must establish a factual foundation for a claim of ineffective representation; sweeping generalized accusations will not suffice
3. there is a three-part test to determine if the presumption of competence has been overcome: (1) are the 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 was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result