U.S. v. Dobson, 63 M.J. 1

First Principles: Constitutional Matters: Right to Counsel

1. the right to counsel under the Sixth Amendment includes the right to the effective assistance of counsel

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

1. the right to counsel under the Sixth Amendment includes the right to the effective assistance of counsel
2. appellant did not establish that his defense counsel was ineffective for choosing to present the testimony of a psychologist that appellant suffered from PTSD when she killed her husband, on the ground that the psychologist’s evaluation was vulnerable because she used an outdated and inappropriate test, committed computational errors in scoring the tests, and relied on outdated scoring methods; although psychologist was vulnerable witness, appellant did not establish prejudice by demonstrating a specific alternative approach that should have been taken by the trial defense team which would have produced outcome-altering testimony
3. appellant did not establish that his defense counsel was ineffective in not pursuing the recommendation of the sanity board to contact an expert on domestic violence and female offenders, absent demonstration of prejudice; appellant did not identify any outcome-altering difference between what the recommended expert would have offered and the background testimony that was actually presented at trial by an expert witness called by the defense
4. appellant did not establish that his defense counsel was ineffective for not calling members of his sanity board to testify at trial who would have been helpful in rebutting the suggestion of a prosecution witness that appellant was malingering and in showing that appellant suffered from a post-traumatic reaction the night she killed her husband; testimony by board members would have carried significant risks for the defense, and the decision not to call board members as witnesses was well within the range of discretion afforded to defense counsel
5. appellant did not establish that defense counsel was ineffective for not moving at trial to suppress statements she made on two occasions to psychiatrist during meetings to address mental health problems she encountered during pretrial confinement, as there was no legal basis to suppress her statements; moreover, there was no prejudice from the psychiatrist’s reliance on the statements in his subsequent testimony for the government, as even if the statements had been excluded, he would have provided adverse testimony covering the same matter

Military Justice Personnel: Court Members: Generally

1. a general court-martial panel consists of not less than five members appointed by the convening authority; if an enlisted accused requests that the panel include enlisted members, the membership must include enlisted members in a number comprising at least one-third of the total membership of the court, subject to an exception for physical conditions or military exigencies; whenever a general court-martial panel is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members; the prohibition against proceeding, however, is subject to the procedure for making and ruling on challenges under Article 41, UCMJ; Article 41 authorizes challenges for cause and permits each party to exercise one peremptory challenge; under Article 41(a)(2), if the exercise of a challenge for cause reduces the court below the total composition requirement of a general court-martial, all parties shall either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court; however, peremptory challenges shall not be exercised at that time; under Article 41(b)(2), if the exercise of a peremptory challenge reduces the court below the total composition requirement of a general court-martial, the parties shall either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining members of the court before additional members are detailed to the court
2. under Article 41(a)(2), when challenges for cause reduce panel membership below the minimum total number of members required under Article 16, the military judge is not required to halt the proceedings until new members are appointed; instead, the parties proceed with any remaining challenges for cause before additional members are detailed to serve on the panel; the rule then provides that peremptory challenges shall not be exercised at that time; there is no mention in the statute of applying a similar procedure when the total number is adequate under Article 16 but the percentage of enlisted membership is deficient under Article 25; there is a rational basis for distinguishing between a deficit under Article 16 and a deficit under Article 25; the quorum requirement for a general court-martial under Article 16 involves an absolute number -- there must be at least five members; once membership drops below the total required by Article 16, new members will have to be detailed regardless of the exercise of peremptory challenges; by contrast, the enlisted representation requirement in Article 25 employs a percentage, not an absolute number; as a result, there are circumstances in which an enlisted representation deficit under Article 25 can be corrected through exercise of a peremptory challenge against an officer; because it is possible that exercise of a peremptory challenge could preclude the need for appointment of new members under Article 25, the omission of Article 25 from Article 41 is not a drafting error and does not otherwise warrant an interpretation of Article 41 to include Article 25
3. the military judge properly ruled that the parties could still exercise peremptory challenges when the panel contained sufficient members to meet the total composition requirements of a general court-martial under Article 16, but the proportion of enlisted members fell below the one-third representation requirement of Article 25, because the composition of the court-martial under Article 25 is not a pertinent factor for the purposes of determining the timing of peremptory challenges under Article 41
4. after the court-martial panel had fallen below the required enlisted representation under Article 25, the addition of officer members to the court-martial panel in addition to enlisted members was not improper under RCM 505(c)(2)(B), which permits additions when the total number of members has been reduced below quorum or the number of enlisted members has been reduced below one-third of the panel’s membership, notwithstanding the accused’s objection that such action unfairly diluted his right to enlisted representation
5. an enlisted accused who requests enlisted membership on a court-martial panel under Article 25(c)(1) is entitled by the statute only to a minimum proportion -- at least one-third of the total membership of the court; RCM 505(c)(2)(B) limits the circumstances under which a convening authority may add members to the panel, but it does not require the authority to add only the minimum number and type necessary to address any deficit under Articles 16 or 25; neither the statute nor the rule entitles an enlisted accused to maintain the proportion of officer and enlisted members that was contained in the initial convening order or at any other point during trial

Core Criminal Law Subjects: Crimes: Article 118 - Murder Pre-2019 offenses

1. unpremeditated murder does not require a fixed intent to kill a specific person after considering the specific act; a person may be convicted of unpremeditated murder even if the person had no intent to kill prior to taking an act, so long as the act itself was intentional and likely to result in death or great bodily harm

Core Criminal Law Subjects: Defenses: Self-Defense

1. it is a defense to a homicide that the accused: (A) apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and (B) believed that the force the accused used was necessary for protection against death or grievous bodily harm; the first element, under subparagraph (A), has an objective component, involving the perception of a reasonable person under the circumstances; the second element, under subparagraph (B), is wholly subjective, involving the personal belief of the accused, even if not objectively reasonable; although mental health evaluations may be relevant to both elements of self-defense, such evaluations may have particular import with respect to the second element, which involves the personal, subjective perceptions of the accused
2. the military judge’s error in precluding appellant from introducing corroborating evidence when her credibility was attacked regarding the state-of-mind element of her claim of self-defense to premeditated murder was not a constitutional error that was prejudicial unless harmless beyond a reasonable doubt; appellant had an extensive opportunity to present a state-of-mind defense
3. the military judge’s error in excluding the proposed testimony of witnesses that the victim threatened to kill appellant on two occasions which was offered to corroborate appellant’s claim of self-defense after an attack on her credibility during cross-examination was not prejudicial on the issue of self-defense in court-martial of appellant for premeditated murder, considering that the prosecution’s case refuting the self-defense claim was strong, the defense’s case was weak, and the quality and materiality of the excluded evidence was of diminished value on the issue of self-defense

Core Criminal Law Subjects: Evidence: Credibility

1. the military judge erred when he prevented appellant from introducing corroborating evidence when her credibility was attacked; such evidence is admissible to rebut a claim of recent fabrication under MRE 801(d)(1)(B)

Core Criminal Law Subjects: Evidence: Hearsay › Residual hearsay

1. evidence of a victim’s specific prior acts of violence known to the defendant may be admitted to show appellant’s state of mind at the time of the victim’s death
2. the military judge abused his discretion in court-martial of accused for premeditated murder of her husband in excluding the proposed testimony of witnesses that her husband threatened to kill her on two occasions; the testimony was admissible to show the accused’s state of mind at the time of the murder, and thereby establish the intent element of self-defense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in excluding the proposed testimony of witnesses that the victim threatened to kill her on two occasions was prejudicial with respect to the issue of premeditation in the court-martial of appellant for premeditated murder of her husband; the key element of the government’s strategy was to convince the panel that they could discount the expert testimony on the impact of spousal abuse on appellant on the grounds that they should treat appellant’s entire testimony regarding abuse as a lie, and if the military judge had permitted the corroborating testimony of the excluded witnesses, the government would not have been able to make that argument

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

1. an appellate court reviews allegations of ineffective assistance of counsel de novo; on appellate review, there is a strong presumption that counsel was competent; a servicemember who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle
2. under the first prong of the test for ineffective assistance of counsel, which examines the issue of deficiency in performance, an appellate court asks: (1) are appellant’s allegations true; (2) if so, is there a reasonable explanation for counsel’s actions; and, (3) if there is not a reasonable explanation, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers
3. even if counsel’s performance was deficient, the defense must surmount the second prong of the test for ineffective assistance of counsel, which measures prejudice; under this prong, the defense bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; the second prong is critical because, if an appellate court concludes that any error would not have been prejudicial under the second prong of the test for ineffective assistance of counsel, it need not ascertain the validity of the allegations or grade the quality of counsel’s performance under the first prong
4. an appellate court reviews the ruling on the admissibility of evidence under an abuse of discretion standard, under which it assesses whether the military judge’s findings of fact were clearly erroneous or whether the decision was influenced by an erroneous view of the law
5. the test for nonconstitutional evidentiary error requires an appellate court to weigh four factors: (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question