U.S. v. Terlep, 57 M.J. 344

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

1. ineffective assistance of counsel requires, inter alia, that the defendant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment
2. the failure to pursue a legal claim is not necessarily deficient conduct by counsel; if that claim is not shown to have a reasonable probability of being found meritorious as a matter of law and fact, the failure to pursue it is not error and certainly not ineffective assistance of counsel

Core Criminal Law Subjects: Evidence: Stipulations

1. R.C.M. 811(e) precludes the Government from evidencing facts at a court-martial which "contradict" those agreed to in an accepted stipulation of fact; however, this rule says nothing about precluding the parties from presenting evidence which "goes beyond" the facts in the stipulation; stipulations of fact do not prohibit proof of facts which are neither designated nor necessarily implied in the stipulation
2. the victim’s testimony did not so contradict the stipulation of fact in this case: (1) this stipulation of fact did not expressly state that a rape did not occur that night; (2) the stipulation of fact did not expressly provide that appellant’s assault with his hands on the victim’s "legs," "torso," and "breasts" were the only touchings that occurred that night; (3) it was not necessarily inferable from the sexual assaults stipulated to that a rape did not also occur; and (4) defense counsel, without caveat, indicated his understanding that the stipulation of fact was limited in nature and the parties had additional evidence as to the events of that evening
3. RCM 811(e) did not prohibit trial counsel from presenting evidence as to aggravating facts not expressly or implicitly covered by this stipulation; argument as to the occurrence of a rape not particularly addressed in the stipulation was also not prohibited

Trial Stages: Merits: Pretrial Agreements

1. the entrance of the Government and appellant into a plea bargain for a lesser charge than rape does not change the facts as to what happened to the victim that night in her view; the search for truth in the courtroom need not be dispensed with simply because a plea agreement exists outside it; absent an express provision in the pretrial agreement or some applicable rule of evidence or procedure barring such evidence, this important victim impact evidence was properly admitted

Trial Stages: Merits: Argument

1. it is not proper for a trial counsel to express his personal opinion or belief that a government witness is telling the truth; however, trial counsel’s argument here could reasonably be construed as simply calling the court’s attention to the victim’s fortitude in performing her civic duty as a witness in this personally difficult case

Trial Stages: Sentence and Punishment: Evidence

1. the entrance of the Government and appellant into a plea bargain for a lesser charge than rape does not change the facts as to what happened to the victim that night in her view; the search for truth in the courtroom need not be dispensed with simply because a plea agreement exists outside it; absent an express provision in the pretrial agreement or some applicable rule of evidence or procedure barring such evidence, this important victim impact evidence was properly admitted

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in order for plain error to be found, appellant must establish, inter alia, that an error occurred