U.S. v. Adams, 59 M.J. 367

Military Justice Personnel: Defense Function: Appellate Counsel

1. an appellant has the right to representation before the CCA by both detailed military and civilian counsel; in cases where the appellant is represented by both, the civilian counsel normally exercises the responsibilities of lead counsel for the defense

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

1. an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and our Court by appellate counsel appointed under Article 70, UCMJ
2. despite the absence of his civilian counsel’s brief at the CCA, appellant failed to meet the prejudice component of the ineffective assistance of counsel test set forth in Strickland v. Washington, where (1) he was not unrepresented before the CCA and therefore not entitled to the presumption of prejudice that would follow when counsel is wholly absent; (2) the single issue raised in the “missing” brief, the admissibility of his pretrial statement, was fully litigated at the trial level; (3) appellant entered a guilty plea to an lio and waived any objection to the statement with respect to that lio; (4) the CCA was required to independently review the record of trial for law and fact; (5) the merits brief to the CCA directed that court’s attention to appellant’s post-trial submission to the convening authority, a submission which specifically challenged the voluntariness of his pretrial statement; and (6) had the admissibility of appellant’s pretrial statement been presented to the CCA in a brief prepared by civilian counsel, the conclusion of the CCA would have been no different

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

1. claims that appellate defense counsel have rendered ineffective assistance are measured by the same test applicable to such claims lodged against a trial defense counsel; thus, we are guided by the Supreme Court’s two-pronged test set forth in Strickland v. Washington; as applied to the appellate setting, this test places the burden on an appellant to show both deficient performance by appellate defense counsel and prejudice; an appellant meets his burden on deficient performance when he demonstrates that his appellate counsel’s performance was so deficient that it fell below an objective standard of reasonableness; the burden to show prejudice is met when the appellant shows that appellate counsel’s errors were so serious as to deprive the appellant of a fair appellate proceeding whose result is reliable
2. an appellant’s burden on the deficiency prong of Strickland v. Washington is heavy because counsel is presumed to have performed in a competent, professional manner; to overcome this presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
3. we apply a three-part test to determine whether an appellant has overcome the presumption of competence: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions; (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, there would have been a different result
4. we review an appellate defense counsel’s effectiveness de novo as a question of law
5. there is no particular order in which the two components of the Strickland v. Washington test must be addressed; a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed
6. in analyzing an appellant’s claim of ineffective appellate representation, we do not look at the shortcomings of any single counsel and speculate about the impact of individual errors; rather, we measure the impact upon the proceedings by the combined efforts of the defense team as a whole