U.S. v. Melson, 66 M.J. 346

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

1. when an accused raises allegations of ineffective assistance of counsel, trial defense counsel is not compelled to justify their actions until a court of competent jurisdiction reviews the allegation of ineffectiveness and the government response, examines the record, and determines that the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence
2. after finding that the accused had raised an allegation of ineffective assistance of counsel and overcome the presumption of competence with an affidavit raising a claim of illegal pretrial punishment, the CCA erred in not affording the government an opportunity to submit a statement or affidavit from the accused’s defense counsel to rebut the allegations
3. when colorable claims of ineffective assistance of counsel are raised on appeal, in those cases where the government can obtain an affidavit from trial defense counsel, the government should continue to endeavor to complete the appellate record promptly by obtaining such an affidavit and avoid any undue delay
4. where the CCA finds that allegations of ineffective assistance and the record contain evidence which, if unrebutted, would overcome the presumption of competence and there is no affidavit from defense counsel in the record addressing those allegations, that court is required to obtain a response from trial defense counsel in order to properly evaluate the allegations

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. when colorable claims of ineffective assistance of counsel are raised on appeal, in those cases where the government can obtain an affidavit from trial defense counsel, the government should continue to endeavor to complete the appellate record promptly by obtaining such an affidavit and avoid any undue delay

Trial Stages: Appeals: Generally

1. when colorable claims of ineffective assistance of counsel are raised on appeal, in those cases where the government can obtain an affidavit from trial defense counsel, the government should continue to endeavor to complete the appellate record promptly by obtaining such an affidavit and avoid any undue delay

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. after finding that the accused had raised an allegation of ineffective assistance of counsel and overcome the presumption of competence with an affidavit raising a claim of illegal pretrial punishment, the CCA erred in not affording the government an opportunity to submit a statement or affidavit from the accused’s defense counsel to rebut the allegations
2. where the CCA finds that allegations of ineffective assistance and the record contain evidence which, if unrebutted, would overcome the presumption of competence and there is no affidavit from defense counsel in the record addressing those allegations, that court is required to obtain a response from trial defense counsel in order to properly evaluate the allegations