U.S. v. Datavs, 71 M.J. 420

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

1. to establish ineffective assistance of counsel, an accused must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice
2. with respect to the first prong of establishing ineffective assistance of counsel, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance
3. with respect to the second prong of establishing ineffective assistance of counsel, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; it is not enough to show that the errors had some conceivable effect on the outcome; instead, a reasonable probability is a probability sufficient to undermine confidence in the outcome
4. defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so
5. defense counsel’s strategic choices in this case not to impeach a single statement of the victim through her telephone records and not to challenge for cause two members who had identified themselves as base victim advocates, were choices that fell within the bounds of reasonable performance, where by opting not to use the telephone records, defense counsel avoided alerting the government counsel to the existence of and contact information for the victim’s boyfriend, who was known to have information that would be damaging to the defense, and where defense counsel determined that the members in question possessed characteristics that made them more likely to be persuaded by the defense’s theory of the case, and, during voir dire, both members affirmed their impartiality and ability to decide the case solely on the evidence and instructions
6. when reviewing ineffectiveness claims, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the accused; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed
7. defense counsel’s decisions to cross-examine the government sexual assault nurse examiner (SANE) witness at trial without consulting with its own SANE expert and not to counter the witness’s testimony with a defense SANE expert did not prejudice the accused and did not amount to ineffective assistance of counsel, where there was no reasonable probability that if a defense SANE expert had been consulted at trial, prior to the cross-examination of the government witness, or had been called during the defense’s case, the panel members would have harbored a reasonable doubt respecting guilty; the accused admitted prior to trial that he intentionally engaged in anal sodomy with the victim, and the only contested issues with regard to his conviction for forcible anal sodomy were whether the sodomy occurred by force and without the victim’s consent; and the report of the defense’s post-trial SANE expert, while critical of the government SANE witness’s examination procedures and some of her general conclusions, was substantially consistent with her testimony with regard to the issues of force and consent; because the accused failed to demonstrated that the assistance or testimony of a defense SANE expert would have substantially undermined the force of the government SANE witness’s testimony, taken as a whole, with regard to the issues of force and consent, the accused’s conviction would still have hinged on whether the members found the victim’s testimony that she did not consent credible in light of the accused’s statement that she had consented; when viewed cumulatively with the accused’s contradictory statements as to whether he and the victim had even engaged in anal sodomy and his conviction for making a false official statement to the police, there is no reasonable probability that the panel would have arrived at a different outcome after hearing the defense SANE witness’s testimony
8. defense counsel’s performance is not per se deficient by failing to counteract an adverse expert’s unexpected testimony with an expert witness of their own

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

1. to establish ineffective assistance of counsel, an accused must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice
2. in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo
3. with respect to the first prong of establishing ineffective assistance of counsel, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance
4. with respect to the second prong of establishing ineffective assistance of counsel, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; it is not enough to show that the errors had some conceivable effect on the outcome; instead, a reasonable probability is a probability sufficient to undermine confidence in the outcome
5. defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so
6. when reviewing ineffectiveness claims, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the accused; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed