U.S. v. Garcia, 59 M.J. 447

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

1. to establish ineffective assistance of counsel, appellant must show that counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial; a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy
2. this Court applies a three prong test to determine if the presumption of competence of counsel has been overcome: (1) are the 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?
3. we evaluate the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel
4. in this case, we find that appellant received ineffective assistance of counsel in two significant respects: (1) his civilian defense counsel waived the Article 32 investigation without appellant’s agreement; and (2) his military defense counsel inexplicably failed to advise appellant of the range of options he faced when he eventually confessed his full involvement to counsel near the conclusion of the government’s case-in-chief and thereafter failed to demonstrate a sound trial strategy in the presentation of appellant’s case
5. it is possible that under certain circumstances waiver of an Article 32 investigation without the client’s personal consent would not constitute ineffective assistance of counsel, for example where there is good cause for the failure to obtain personal consent, a sound tactical decision or a lack of resultant prejudice; in this case, however, we see no such saving circumstances where we perceive no sound strategic reasons for the waiver itself, and the record reveals no benefit for appellant in exchange for giving up his right to an Article 32 investigation; on the contrary, the record demonstrates that appellant was prejudiced; he did not have the opportunity to hear the government’s case against him and to assess the potential strength of that case; if he had seen the case against him prior to rather than in the midst of the trial, he might have sought a plea agreement which would have limited his sentence; under these circumstances, we find that defense counsel’s action in waiving appellant’s right to an Article 32 investigation without appellant’s personal consent fell measurably below the performance ordinarily expected of fallible lawyers, and that there is a reasonable probability of a different result absent that action
6. appellant did not disclose the full extent of his involvement to his military counsel until three days into the presentation of the government’s evidence; at that point, defense counsel, who remained bound by the requirement to take only those actions that were in the best interests of his client, was left with a range of problematic options, including exploring of the possibility of a plea agreement, changing his plea to guilty, having appellant remain silent, or having appellant confess and throw himself on the mercy of the court without changing his plea; at this strategic crossroads, defense counsel had the responsibility of explaining these options to his client and obtaining the client’s fully informed consent as to which path to follow; instead, defense counsel inexplicably chose to advise appellant of a single and arguably the least tenable option; counsel failed to inform or discuss with appellant any other options; we find no reasonable explanation for defense counsel’s failure to advise his client of the range of options open to him; his performance in this regard fell measurably below that standard ordinarily expected of fallible lawyers
7. the adversarial nature of our system of justice depends on partisan advocacy by both parties: the right to effective assistance of counsel includes the right of the accused to a counsel who is acting as an advocate for the accused, as opposed to a friend of the court; by eliciting from appellant the details of his criminal activity and by conceding the ugly character of appellant’s actions, much of what defense counsel accomplished merely assisted the government and bolstered the case against appellant
8. during his lengthy and detailed examination of appellant’s criminal activity, defense counsel’s actions exhibited a clear lack of a sound trial strategy that would have served the best interests of his client; he did not attempt to elicit from appellant any expressions of remorse or contrition; this judicial confession had no mitigating impact; in fact, defense counsel’s direct examination opened the door for the prosecution in its cross-examination to elicit aggravating and damaging details not previously established; moreover, while the defense counsel argued during his sentencing argument that appellant was remorseful, he also made arguments that served only to highlight appellant’s culpability; although we are not prepared to say that the strategy chosen by defense counsel was per se ineffective, under the circumstances before us, and given that appellant was not informed of other possible options, defense counsel’s performance fell measurably below the performance ordinarily expected of fallible lawyers
9. the extreme harshness of the sentence returned by the members is strong evidence that appellant was prejudiced by the aggravating testimony elicited from him as he followed defense counsel’s advised course of action; the government asked for confinement for 86 years, and the members returned a sentence which included a sentence of 125 years - 39 years more than even what the government thought was appropriate; such an exceptionally harsh sentence leads us to believe that there is a reasonable probability of a different outcome to the court-martial had defense counsel explored the range of available options with his client
10. we find that the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance has been overcome; there was no reasonable explanation for the defense team’s actions with regards to the Article 32 waiver; that action, coupled with counsel’s advice to confess and his subsequent lack of a coherent trial strategy, falls measurably below the performance ordinarily expected of fallible lawyers; there is a reasonable probability that, absent these errors, there would have been a different result

Trial Stages: Pretrial: Investigations (Article 32)

1. Article 32 requires a thorough and impartial investigation before any charges or specifications may be referred to a general court-martial; at the investigation, the accused has the right to be represented by counsel, to cross-examine witnesses, and to present anything he may desire in his own behalf; the Article 32 investigation operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges
2. pursuant to RCM 405(k), the accused may waive an Article 32 investigation; the precise form or procedure for a waiver is not specified, and whether the accused’s right to an Article 32 investigation is personal to the accused is an issue of first impression at this Court; we recognize that as to many decisions pertaining to the conduct of the trial [e.g., what evidentiary objections to raise or what agreements to conclude regarding the admission of evidence], consent or waiver by counsel is binding, whether or not the client has personally consented or explicitly agreed to waive a matter; however, the decision whether to waive a pretrial investigation is unlike the many routine decisions a lawyer must make as the trial progresses; it is, rather, a decision fundamentally impacting a substantial pretrial right of the accused; we agree that the right to an Article 32 investigation is a personal right, and in most instances cannot be waived without a defendant’s informed consent