U.S. v. Perez, 64 M.J. 239

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

1. an accused who claims ineffective assistance of counsel must surmount a very high hurdle; judicial scrutiny of a defense counsel’s performance must be highly deferential and should not be colored by the distorting effects of hindsight
2. to overcome the presumption of his defense counsel’s competence, an appellant must satisfy the two-part test set forth in Strickland v. Washington and demonstrate: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the accused of a fair trial, a trial whose result is reliable
3. as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel
4. an appellate court must indulge a strong presumption that a defense counsel’s conduct falls within the wide range of reasonable professional assistance; that is, an accused must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy; there are countless ways to provide effective assistance in any given case; even the best criminal defense attorneys would not defend a particular client in the same way
5. in cases involving attacks on defense counsel’s trial tactics, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; an appellant must also show prejudice
6. the test for prejudice on a claim of ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different
7. an appellate court considers whether a defense counsel was ineffective and whether any errors were prejudicial under a de novo standard of review
8. appellant did not demonstrate that his defense counsel’s decision to call the victim as a defense witness with respect to sexual abuse charges was deficient under the first prong of the ineffective assistance of counsel test where, under defense counsel’s direct examination, the victim testified that the sexual activity was not as frequent or as extensive as described in her statement to the CID, and where the decision by the military judge to find appellant not guilty of certain offenses and to modify others directly reflected the testimony presented by the victim at trial
9. a defense counsel’s decision during sentencing to reference prior “good soldier” testimony provided by a witness during the findings portion of the trial, rather than recalling the witness to testify in sentencing, did not constitute ineffective assistance of counsel where the defense was able to avoid the risk of cross-examination
10. assuming that appellant provided his defense counsel with a list of witnesses who would have testified on his behalf during sentencing and that his defense counsel was deficient for not contacting those witnesses, appellant failed to provide any specificity as to what those witnesses would have said if they had been called to testify at trial, and in that posture, appellant failed to demonstrate prejudice under the second prong of the ineffective assistance of counsel test
11. assuming that defense counsel failed to consult with appellant before submitting a clemency petition and that such performance was deficient, appellant failed to provide specific information about what he or others would have submitted in support of his clemency petition, and in the absence of such information, appellant failed to demonstrate prejudice under the second prong of the ineffective assistance of counsel test; in any event, after the lower court set aside the first convening authority’s action and returned his case for a new action, appellant, in coordination with his new military and civilian defense counsel, provided the convening authority with extensive documentation of his successful military career and many positive letters from family and prison officials; thus, no further relief was warranted

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

1. an accused who claims ineffective assistance of counsel must surmount a very high hurdle; judicial scrutiny of a defense counsel’s performance must be highly deferential and should not be colored by the distorting effects of hindsight
2. to overcome the presumption of his defense counsel’s competence, an appellant must satisfy the two-part test set forth in Strickland v. Washington and demonstrate: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the accused of a fair trial, a trial whose result is reliable
3. as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel
4. an appellate court must indulge a strong presumption that a defense counsel’s conduct falls within the wide range of reasonable professional assistance; that is, an accused must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy; there are countless ways to provide effective assistance in any given case; even the best criminal defense attorneys would not defend a particular client in the same way
5. in cases involving attacks on defense counsel’s trial tactics, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; an appellant must also show prejudice
6. the test for prejudice on a claim of ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different
7. an appellate court considers whether a defense counsel was ineffective and whether any errors were prejudicial under a de novo standard of review