U.S. v. Christian, 63 M.J. 205

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

1. there is a two-pronged test to determine whether there has been ineffective assistance of counsel within the meaning of the Sixth Amendment: (1) the accused must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment; and (2) the accused must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive the accused of a fair trial
2. there is a three-pronged 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 in the defense of the case? (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers? (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?
3. in this case, trial defense counsel was not ineffective in failing to advocate for confinement credit for the accused’s alleged illegal pretrial punishment and restriction tantamount to confinement or in advising the accused to affirmatively waive the issue, where the defense counsel made a reasonable tactical decision to offer the circumstances of the accused’s restriction as a factor in mitigation of the sentence instead of requesting confinement credit

Trial Stages: Pretrial: Pretrial Restraint

1. revocation of off-post privileges is not restriction tantamount to confinement

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. life without eligibility for parole (LWOP) was an authorized court-martial punishment for the crime of forcible sodomy of a child under twelve years of age during the period between enactment of the LWOP statute (November 18, 1997) and its eventual implementation in the MCM (April 11, 2002); the statute creating LWOP authorized this punishment after the date of its enactment for any offense for which a sentence of confinement for life may be adjudged; as appellant committed the offense of forcible sodomy of a child under twelve years of age in May 1998, and the MCM provided for a maximum punishment of confinement for life for this offense, LWOP was an authorized punishment

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. it is a well-established principle of statutory construction that, absent a clear direction of Congress to the contrary, a law takes effect on the date of its enactment