U.S. v. Davis, 60 M.J. 469

First Principles: Constitutional Matters: Right to Counsel

1. the Sixth Amendment guarantees that a servicemember tried by court-martial will receive competent, effective legal representation; the Sixth Amendment right to effective assistance of counsel at trials by court-martial is a fundamental right of servicemembers

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

1. in this case, the entire defense sentencing strategy was to preserve an opportunity for appellant to retire under TERA (Temporary Early Retirement Authority) and thereby provide support and benefits for his family; the potential for a TERA retirement and trial defense counsel’s advice in that regard formed the theme and foundation for the defense sentencing strategy; appellant relied on this advice when he asked for increased confinement in lieu of a dismissal from the Navy; under these particular facts, retirement eligibility under TERA was not a collateral matter and was subject to the Strickland v. Washington analysis for ineffective assistance of counsel
2. in this case, trial defense counsel did not know that under the Navy rules and policy at the time of trial, TERA was not an option in this case; consequently, they could not and did not correctly advise appellant; counsels’ sentencing strategy was fundamentally flawed from its inception because of a failure to research the critical law and regulations; appellant was misadvised and there is no reasonable explanation for counsels’ failure to conduct proper research; counsels’ performance fell below that ordinarily expected of fallible lawyers; familiarity with the facts and applicable law are fundamental responsibilities of defense counsel; a reasonable attorney acting on behalf of a client would have researched the meaning and effect of TERA’s conditional language prior to embarking on a trial or sentencing strategy; the failure to investigate this critical component of the defense sentencing strategy precluded counsel from exercising informed judgment and fully informing appellant of the possible consequences of the strategy; advising appellant and formulating a sentencing strategy based upon what counsel considered confusing eligibility criteria for TERA was risky; not determining the actual meaning of those eligibility criteria was unreasonable; such a performance by counsel was ineffective; had appellant and his counsel known that there was no possibility of a TERA retirement except for a Secretarial waiver, there would have been little incentive for appellant to ask for increased confinement to offset a possible punitive dismissal; following counsel’s argument that the members should maximize appellant’s period of confinement to preserve the possibility of his retirement, the members did just that; they adjudged the maximum period of confinement available; if that possibility had not been presented to the members, there is a reasonable probability that there would have been a different result; appellant was therefore prejudiced by the faulty advice and strategy of his trial defense counsel

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

1. in reviewing claims that counsel rendered ineffective representation, we apply the two-pronged test for ineffective assistance of counsel set forth by the Supreme Court in Strickland v. Washington; the burden on each prong rests with the appellant challenging his counsel’s performance; first, an appellant must show that counsel’s performance fell below an objective standard of reasonableness -– that counsel was not functioning as counsel within the meaning of the Sixth Amendment; our review of counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service; thus, an appellant’s burden is especially heavy on this deficiency prong of the Strickland test; an appellant must establish a factual foundation for a claim of ineffectiveness; second-guessing, sweeping generalizations, and hindsight will not suffice; the presumption of competence is rebutted by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms; the second prong of an appellant’s burden requires a showing of prejudice flowing from counsel’s deficient performance; the appellant must demonstrate such prejudice as to indicate a denial of a fair trial or a trial whose result is unreliable; the appropriate test for prejudice under Strickland is whether there is a reasonable probability that, but for counsel’s error, there would have been a different result
2. ineffective assistance of counsel involves a mixed question of law and fact; factual findings are reviewed under a clearly erroneous standard; but the ultimate determinations of whether an appellant received ineffective assistance of counsel and whether the error was prejudicial are reviewed de novo
3. under the first prong of Strickland v. Washington, we have created a three-part test for determining whether the presumption of competence has been overcome: (1) we ask first whether the appellant's allegations are true and, if so, whether there is a reasonable explanation for counsel’s actions; (2) next, if the allegations are true, we review whether defense counsel’s level of advocacy fell measurably below the performance standards ordinarily expected of fallible lawyers; and (3) finally, if we find that defense counsel was ineffective, we test for prejudice and determine whether there is a reasonable probability that, absent the error, there would have been a different result