U.S. v. Key, 57 M.J. 246

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

1. Court of Appeals for the Armed Forces reviews claims of ineffective assistance of counsel de novo
2. there is a two-part test for ineffective assistance of counsel: an appellant must show deficient performance and prejudice; there is a strong presumption that counsel are competent, and broad, generalized accusations are insufficient to satisfy the first prong
3. appellant’s assertion, that he does not recall being advised of his right to request a waiver of forfeitures, was too equivocal and ambiguous to overcome the presumption that his counsel were competent
4. appellant’s affidavit, asserting that he does not recall being advised of his right to request a waiver of forfeitures, failed to satisfy the prejudice prong of the test for ineffective assistance of counsel because there was no reasonable likelihood that the convening authority would have granted a request to waive the forfeitures and because appellant has failed to provide any offer of proof regarding what he would or could have submitted to support his waiver request

Trial Stages: Initial Review: Post-trial Recommendation

1. whether there is a legal requirement to serve the SJA’s recommendation on a deferment request, and whether the SJA’s recommendation contained “new matter,” are issues of law to be reviewed de novo
2. when an appellant complains about the failure to serve “new matter,” the appellant must demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter
3. the SJA’s comments in his recommendation on a request for deferment of forfeitures were not “new matter” because comment about appellant’s self-inflicted financial situation was a statement of the obvious and because comment about the absence of supporting documentation was merely a non-inflammatory observation about the contents of the request which did not inject anything from outside the record

Trial Stages: Initial Review: Deferral

1. an accused has the burden of showing entitlement to deferment of forfeitures or reduction in grade under Article 57(a)(2), UCMJ, 10 USC § 857(a)(2)

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

1. whether there is a legal requirement to serve the SJA’s recommendation on a deferment request, and whether the SJA’s recommendation contained “new matter,” are issues of law to be reviewed de novo
2. the convening authority’s action on a request for deferment of forfeitures or reduction in grade under Article 57(a)(2), UCMJ, 10 USC § 857(a)(2), shall be subject to judicial review only for abuse of discretion
3. Court of Appeals for the Armed Forces reviews claims of ineffective assistance of counsel de novo