U.S. v. Gonzalez, 62 M.J. 303

First Principles: Constitutional Matters: Right to Counsel

1. servicemembers are guaranteed the right to effective assistance of counsel at trials by court-martial

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

1. servicemembers are guaranteed the right to effective assistance of counsel at trials by court-martial
2. to show ineffective assistance of counsel, appellant must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial
3. in this case, appellant did not receive ineffective assistance of counsel because there was no reasonable probability that a missing laboratory discrepancy report would have produced a different result if counsel had requested a copy; there was enough independent evidence that appellant used the alleged drug that his counsel’s failure to identify and request a copy of the report was not prejudicial; because appellant had not established that his counsel’s performance prejudiced the outcome of his case, he had not established that his Sixth Amendment right to counsel was violated
4. to show ineffective assistance of counsel, appellant must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial; an appellant who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle; there is a presumption that counsel provided adequate professional service; this presumption is rebutted only by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms; in addition, even where counsel made an error, the error must have been so prejudicial as to indicate a denial of a fair trial or a trial whose result is unreliable
5. the Court of Appeals for the Armed Forces applies a three-prong test to determine if the presumption of competence 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?; where the case can be resolved by addressing the third prong -- the question of prejudice -- first, the court need not determine whether counsel’s performance was deficient

Trial Stages: Pretrial: Discovery

1. RCM 701 (a)(2)(B) requires the government, upon request, to turn over results or reports of scientific tests or experiments that are material to the preparation of the defense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. harmless beyond a reasonable doubt is a high standard, but it is not an impossible standard for the government to meet
2. the government’s failure in a urinalysis drug use case to turn over a laboratory discrepancy report is error and will be treated as prejudicial error when the other available evidence does not constitute independent evidence of illegal drug use; where there is sufficient independent evidence of illegal drug use, the government’s error may be treated as harmless
3. in this drug use case, the government’s failure to turn over a laboratory discrepancy report was erroneous, but the error was harmless beyond a reasonable doubt where in addition to the positive drug test, the prosecution introduced independent evidence of drug use including evidence that appellant had drug paraphernalia associated with the drug both in his car and at his work station, that he had used this paraphernalia, that he admitted that he had attended at least one rave party and had fliers for thirteen rave parties in his car, and that he also admitted to prior drug use and to possession; although the missing discrepancy report may have raised some questions about the accuracy of the testing process at the lab, appellant’s urine sample was subjected to four different tests, each of which showed positive for drug use; when the missing report is balanced with the evidence arrayed against appellant, the scales tip strongly in favor of his conviction; furthermore, although the discrepancy report was not produced, the defense counsel had sufficient information to attack the reliability of the laboratory testing process when during the cross-examination of the government expert, the defense counsel elicited testimony that approximately two percent of internal blind aliquots were reported as false positives or with other incorrect results; while the government’s failure to produce the discrepancy report remains error, the evidence the defense would have introduced if it had the discrepancy report would have been to some degree cumulative of the overall false positive rate already in evidence; accordingly, it is unlikely that the missing discrepancy report would have had a substantial impact on the findings in light of the four different positive test results that were also in evidence
4. in this case, appellant did not receive ineffective assistance of counsel because there was no reasonable probability that a missing laboratory discrepancy report would have produced a different result if counsel had requested a copy; there was enough independent evidence that appellant used the alleged drug that his counsel’s failure to identify and request a copy of the report was not prejudicial; because appellant had not established that his counsel’s performance prejudiced the outcome of his case, he had not established that his Sixth Amendment right to counsel was violated

Trial Stages: Appeals: Law of the Case

1. harmless beyond a reasonable doubt is a high standard, but it is not an impossible standard for the government to meet
2. the government’s failure in a urinalysis drug use case to turn over a laboratory discrepancy report is error and will be treated as prejudicial error when the other available evidence does not constitute independent evidence of illegal drug use; where there is sufficient independent evidence of illegal drug use, the government’s error may be treated as harmless
3. in this drug use case, the government’s failure to turn over a laboratory discrepancy report was erroneous, but the error was harmless beyond a reasonable doubt where in addition to the positive drug test, the prosecution introduced independent evidence of drug use including evidence that appellant had drug paraphernalia associated with the drug both in his car and at his work station, that he had used this paraphernalia, that he admitted that he had attended at least one rave party and had fliers for thirteen rave parties in his car, and that he also admitted to prior drug use and to possession; although the missing discrepancy report may have raised some questions about the accuracy of the testing process at the lab, appellant’s urine sample was subjected to four different tests, each of which showed positive for drug use; when the missing report is balanced with the evidence arrayed against appellant, the scales tip strongly in favor of his conviction; furthermore, although the discrepancy report was not produced, the defense counsel had sufficient information to attack the reliability of the laboratory testing process when during the cross-examination of the government expert, the defense counsel elicited testimony that approximately two percent of internal blind aliquots were reported as false positives or with other incorrect results; while the government’s failure to produce the discrepancy report remains error, the evidence the defense would have introduced if it had the discrepancy report would have been to some degree cumulative of the overall false positive rate already in evidence; accordingly, it is unlikely that the missing discrepancy report would have had a substantial impact on the findings in light of the four different positive test results that were also in evidence
4. in this case, appellant did not receive ineffective assistance of counsel because there was no reasonable probability that a missing laboratory discrepancy report would have produced a different result if counsel had requested a copy; there was enough independent evidence that appellant used the alleged drug that his counsel’s failure to identify and request a copy of the report was not prejudicial; because appellant had not established that his counsel’s performance prejudiced the outcome of his case, he had not established that his Sixth Amendment right to counsel was violated

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

1. where the government fails to disclose discoverable material pursuant to a specific request, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt
2. to show ineffective assistance of counsel, appellant must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial; an appellant who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle; there is a presumption that counsel provided adequate professional service; this presumption is rebutted only by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms; in addition, even where counsel made an error, the error must have been so prejudicial as to indicate a denial of a fair trial or a trial whose result is unreliable
3. the Court of Appeals for the Armed Forces applies a three-prong test to determine if the presumption of competence 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?; where the case can be resolved by addressing the third prong -- the question of prejudice -- first, the court need not determine whether counsel’s performance was deficient