U.S. v. Edmond, 63 M.J. 343

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

1. the trial defense counsel’s failure to take simple steps to secure the testimony of a witness that he had previously deemed relevant and necessary to the accused’s case, and who he had subpoenaed, fell measurably below the level of performance an appellate court would expect of a lawyer, and overcame the presumption of competence
2. the trial defense counsel’s failure to secure the testimony of a subpoenaed defense witness was prejudicial and constituted ineffective assistance of counsel, where the proposed testimony of the witness would have raised questions as to certain elements of the charges of conspiracy and larceny, and thus there was a reasonable possibility that without the defense counsel’s error there would have been a different result

Military Justice Personnel: Prosecution Function: Trial Counsel

1. prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon
2. several legal norms are violated when a trial counsel attempts to or unlawfully dissuades a defense witness from testifying at a court-martial - an accused’s due process rights and witness interference
3. that a witness’s testimony would have contradicted the testimony of the government’s own witnesses does not form a sufficient basis for the trial counsel to warn the witness about perjury; rather, unusually strong admonitions against perjury are typically justified only where the trial counsel has a more substantial basis in the record for believing the witness might lie -- for instance, a direct conflict between the witness’s proposed testimony and that witness’s prior testimony; it is not uncommon in litigation, or in life in general, for individuals to have different perceptions of the same event; the fact that two witnesses have conflicting views of an event does not mean, without more, that either witness is intentionally testifying falsely
4. a trial counsel substantially interferes with a witness’s decision to testify where he combines a standard admonition against perjury -- that the defense witness could be prosecuted for perjury in the event the witness lied on the stand -- with an unambiguous statement of his belief that the witness would be lying if the witness testified in support of the accused’s alibi; the additional statement will serve as no more than a thinly veiled attempt to coerce a witness off the stand
5. the trial counsel committed prosecutorial misconduct by confronting a civilian witness subpoenaed by the defense with speculation that his proposed testimony was a lie and combining it with a warning that the Government would prosecute him; this combination substantially interfered with the witness’s decision to testify and had the effect of unlawfully dissuading him form testifying at the accused’s court-martial
6. prosecutors and military judges may provide appropriate information to witnesses about the consequences of perjury; it is not improper per se for a trial court judge or prosecuting attorney to advise prospective witnesses of the penalties for testifying falsely; but warnings concerning the dangers of perjury cannot be emphasized to the point where they threaten and intimidate the witness into refusing to testify
7. after subpoenaing a witness on behalf of the defense, the trial counsel was not authorized to tell the witness that he could choose to either testify or not testify because the witness could not choose to leave without testifying unless the defense agreed to release him and the subpoena was quashed by the military judge
8. under RCM 703(b)(1), a party is entitled to the production of any witness whose testimony on a matter in issue on the merits would be relevant and necessary; the trial counsel is obligated to arrange for the presence of any witness requested by the defense unless the trial counsel contends that the witness’s production is not required under the rule

Core Criminal Law Subjects: Witnesses: Production of

1. after subpoenaing a witness on behalf of the defense, the trial counsel was not authorized to tell the witness that he could choose to either testify or not testify because the witness could not choose to leave without testifying unless the defense agreed to release him and the subpoena was quashed by the military judge
2. under RCM 703(b)(1), a party is entitled to the production of any witness whose testimony on a matter in issue on the merits would be relevant and necessary; the trial counsel is obligated to arrange for the presence of any witness requested by the defense unless the trial counsel contends that the witness’s production is not required under the rule

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

1. in a due process analysis of prosecutorial misconduct, an appellate court looks at the fairness of the trial and not the culpability of the prosecutor; even where it finds misconduct on the part of the prosecutor, the court will go on to look at the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness
2. when reviewing claims of ineffective assistance of counsel, an appellate court is guided by the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984); 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; 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, i.e. that there is a reasonable probability that, but for counsel’s error, there would have been a different result
3. in evaluating issues of prosecutorial misconduct, an appellate court reviews the military judge’s findings of fact to determine whether they are clearly erroneous; the questions whether the facts found by the military judge constitute prosecutorial misconduct and whether such misconduct was prejudicial error are questions of law that we review de novo
4. in a prosecutorial misconduct analysis, even if an appellate court were to find misconduct on the part of the prosecutor, this court will go on to look at the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness; in assessing prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial
5. an appellate court’s review of a defense counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service; the presumption of competence is rebutted by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms