U.S. v. Haney, 64 M.J. 101

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

1. there is a three-pronged test to determine whether counsel has been ineffective: (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 the allegations are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers, and (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
2. appellate defense counsel’s repeated requests for enlargements of time did not constitute ineffective assistance of counsel for failure to file appellate pleadings in a timely manner, because appellant was not prejudiced by any such deficiency, notwithstanding appellant’s assertion that seven years of appellate delay resulted directly from appellate defense counsel’s deficient performance; the delay was harmless beyond a reasonable doubt where there was no meritorious issue on appeal, no cognizable prejudice arising from the delay, and appellant served only 107 days of confinement and was likely released on appellate leave thereafter
3. with respect to appellant’s claim that his appellate defense counsel failed to perform the specific duty of filing pleadings in a timely manner, appellant must show that there is a reasonable probability that he was prejudiced by the alleged deficiency
4. where a lack of institutional vigilance causes a case to languish on appeal, appellant is effectively denied his statutory right to the free and timely professional assistance of detailed military appellate defense counsel
5. in order to prevail on the prejudice prong of an ineffective assistance of counsel claim, appellant must ultimately show that the deficient performance prejudiced the defense

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. MRE 301(f)(3) provides that the fact that an accused during official questioning and in exercise of rights under the Fifth Amendment to the Constitution of the United States or Article 31, remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated is inadmissible against that accused; MRE 301(f)(3) reaffirms the long-standing general rule that trial counsel cannot make capital of an accused’s exercise of his Article 31 rights

Trial Stages: Merits: Argument

1. trial counsel has the duty of prosecuting a case, and he is permitted to comment earnestly and forcefully on the evidence, as well as on any inferences which are supported reasonably by the testimony; he may strike hard blows, but they must be fair; if his closing argument has a tendency to be inflammatory, it must be based on matters found within the record; otherwise, it is improper; the issues, facts, and circumstances of the case are the governing factors as to what may be proper or improper
2. failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver in the absence plain error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even assuming that the trial counsel’s closing argument improperly commented on appellant’s right to invoke his Article 31, UCMJ, rights during interrogation and his constitutional right to consult with counsel, any error was harmless beyond a reasonable doubt, where the matter was raised by trial defense counsel to support the defense theory of the case that appellant’s admission to one incident of marijuana use was fabricated in response to false promises of leniency and coercion, and the strength of the government’s case did not hinge upon appellant’s confession to one use of marijuana

Trial Stages: Appeals: Preservation of Error / Plain Error

1. failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver in the absence of plain error; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused

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

1. there is a three-pronged test to determine whether counsel has been ineffective: (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 the allegations are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers, and (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
2. with respect to appellant’s claim that his appellate defense counsel failed to perform the specific duty of filing pleadings in a timely manner, appellant must show that there is a reasonable probability that he was prejudiced by the alleged deficiency
3. there are four factors used to determine whether post-trial delay violates due process rights: (1) length of the delay, (2) reasons for the delay, (3) appellant’s assertion of his right to a timely appeal, and (4) prejudice to appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation
4. in order to prevail on the prejudice prong of an ineffective assistance of counsel claim, appellant must ultimately show that the deficient performance prejudiced the defense

Trial Stages: Appeals: Waiver

1. failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver in the absence of plain error

Miscellaneous Matters: Speedy Trial: Post-Trial

1. there are four factors used to determine whether post-trial delay violates due process rights: (1) length of the delay, (2) reasons for the delay, (3) appellant’s assertion of his right to a timely appeal, and (4) prejudice to appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation
2. a delay of 2,639 days from sentencing to the opinion by the court of criminal appeals is facially unreasonable
3. where a lack of institutional vigilance causes a case to languish on appeal, appellant is effectively denied his statutory right to the free and timely professional assistance of detailed military appellate defense counsel
4. even though appellant suffered no prejudice from the appellate delay, the egregiousness of the seven year unexplained delay in this case was such that the perception of fairness of the military justice system is potentially jeopardized; thus, there was a due process violation
5. the seven year appellate delay in this case was harmless beyond a reasonable doubt, where there was neither the denial of properly and timely relief on a meritorious issue nor any particularized anxiety or hardship that might arise from a rehearing, and there was no cognizable prejudice arising from the delay; appellant served only 107 days of confinement and was likely released on appellate leave thereafter