U.S. v. Hennis, 77 M.J. 7

First Principles: Constitutional Matters: Equal Protection

1. absent a suspect classification or interference with a fundamental right, all that is needed for a statute to withstand constitutional scrutiny with respect to equal protection is a rational basis for a distinction between appellant and others who are treated differently
2. appellant’s equal protection claim that he must be treated in a similar manner to future appellants in capital cases who may be entitled to learned counsel under the provisions of the Military Justice Act of 2016 may be rejected for several reasons; first, the distinction involving the possibility of appointment of learned counsel is not based on a constitutionally suspect classification such as race, religion, or national origin; second, the distinction does not interfere with any of appellant’s fundamental constitutional rights; and third, there is a rational basis for the distinction where Congress presumably delayed the effective date and implementation of the amendments to Article 70, UCMJ, in order to provide the government with adequate time to train appellate defense counsel, write and implement regulations pertaining to learned counsel, and allocate funding to pay for the training and use of learned counsel in capital cases

Military Justice Personnel: Defense Function: Right to Counsel

1. the Army’s capital litigation regulation provides a guideline for the appointment of a suggested trial defense team, not a suggested appellate defense team, and by its own terms is hortatory, rather than mandatory and thus does not create a binding right
2. the Military Justice Act of 2016 substantially amends Article 70, UCMJ, by requiring to the greatest extent practicable, in any capital case, at least one defense counsel be learned in the law; however, the “to the greatest extent practicable” language makes plain that there is no statutory requirement for learned counsel; in any event, the pending amendment to Article 70, UCMJ, applies only to future military capital cases and not to appellant’s case

Military Justice Personnel: Defense Function: Appellate Counsel

1. CAAF lacks constitutional, statutory, or regulatory authority to provide appellant with appointment of appellate defense team members pursuant to the Army’s capital litigation regulation, or with funding for learned counsel, a mitigation specialist, or a fact investigator
2. CAAF does not have the authority to mandate the appointment of an appellate defense team pursuant to the provisions of the Army’s capital litigation regulation which are hortatory, rather than mandatory and do not create a binding right
3. the Army’s capital litigation regulation provides a guideline for the appointment of a suggested trial defense team, not a suggested appellate defense team, and by its own terms is hortatory, rather than mandatory and thus does not create a binding right
4. CAAF does not have the authority to mandate funding for learned appellate counsel in this capital case; there currently is no requirement for the appointment of learned counsel knowledgeable in the law applicable to capital cases in military capital cases

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

1. a claim of ineffective assistance of counsel is not ripe for review until after there is a record of counsel’s performance
2. limited experience does not raise a presumption of ineffectiveness

Core Criminal Law Subjects: Witnesses: Experts

1. there is no basis for CAAF to mandate funding for a mitigation specialist or fact investigator to assist in appellant’s appellate defense of his capital murder conviction where, assuming arguendo that CAAF is the proper forum for such a request, appellant has not met the reasonable-necessity standard to establish that he is entitled to have the court mandate expert assistance at this time; simply stated, it is unclear from the record why interviewing witnesses, reviewing documents, and completing certain investigative tasks is beyond the ability of the defense team; furthermore, appellant is not entitled to expert assistance under the Army capital litigation regulation because the regulation does not create mandatory requirements and because it applies to trial defense teams, not appellate defense teams; additionally, this regulation only states that the defense team “may” include mitigation specialists and fact investigators

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. CAAF lacks constitutional, statutory, or regulatory authority to provide appellant with appointment of appellate defense team members pursuant to the Army’s capital litigation regulation, or with funding for learned counsel, a mitigation specialist, or a fact investigator
2. CAAF does not have the authority to mandate the appointment of an appellate defense team pursuant to the provisions of the Army’s capital litigation regulation which are hortatory, rather than mandatory and do not create a binding right
3. CAAF does not have the authority to mandate funding for learned appellate counsel in this capital case; there currently is no requirement for the appointment of learned counsel knowledgeable in the law applicable to capital cases in military capital cases
4. CAAF reviews lower court rulings of denials of requests for experts; it also reviews rulings on whether the expert assistance provided by the government is competent

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

1. a claim of ineffective assistance of counsel is not ripe for review until after there is a record of counsel’s performance