U.S. v. Scott, 81 M.J. 79

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

1. the question whether an appellant has received ineffective assistance of counsel at trial is a legal issue that an appellate court reviews de novo
2. to prevail on an ineffective assistance claim, the appellant bears the burden of proving that the performance of defense counsel was deficient and that the appellant was prejudiced by the error; to establish the element of deficiency, the appellant first must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; to establish the element of prejudice, the appellant must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different
3. at the sentencing phase, ineffective assistance may occur if trial defense counsel either fails to investigate adequately the possibility of evidence that would be of value to the accused in presenting a case in extenuation and mitigation or, having discovered such evidence, neglects to introduce that evidence before the court-martial; prejudice may occur at the sentencing phase, even when trial defense counsel presents several character witnesses, if there is a reasonable probability that there would have been a different result if all available mitigating evidence had been exploited by the defense
4. an appellate court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which will often be so, that course should be followed
5. in this case, trial defense counsel performed deficiently at the sentencing phase of trial in failing to appreciate the enormous and obvious risk that the court-martial would dismiss appellant and failing to take reasonable steps to address this possibility by not seeking witnesses who could testify about appellant’s combat record and his multiple instances of bravery, by not seeking non-local witnesses who could testify about other impressive aspects of appellant’s long military career, and by not preparing a “good soldier book” or seek documentation of the post-traumatic stress disorder that appellant mentioned in his unsworn statement; furthermore, there were no tactical reasons for the trial defense counsel’s decisions
6. in evaluating claims of deficient performance for failing to investigate, an appellate court does not engage in second-guessing tactical decisions that might be characterized as mere Monday-morning quarterbacking
7. in this case, although trial defense counsel performed deficiently at the sentencing phase of trial by failing to present additional “good soldier” mitigating evidence, appellant was not prejudiced by the deficiencies because the omitted evidence was not so transformative that it would have changed the result where (1) the military judge knew from appellant’s official record book that he had served for more than twenty years, that he deployed overseas as a helicopter pilot, and that he had won numerous awards, and the judge knew from appellant’s unsworn statement that appellant deployed into war zones, flew dangerous missions, and had been injured, and (2) where appellant’s misconduct was extremely aggravating in that he committed adultery with a deployed soldier’s wife and then failed to obey the lawful order of his superior not to have any contact with her

Trial Stages: Appeals: Remedies › DuBay/Factfinding hearing

1. when a military judge at a DuBay (17 CMA 147, 37 CMR 411 (1967)), hearing has made findings of fact relevant to the issue of ineffective assistance of counsel, an appellate court accepts the findings as correct unless they are clearly erroneous

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

1. the question whether an appellant has received ineffective assistance of counsel at trial is a legal issue that an appellate court reviews de novo
2. when a military judge at a DuBay (17 CMA 147, 37 CMR 411 (1967)), hearing has made findings of fact relevant to the issue of ineffective assistance of counsel, an appellate court accepts the findings as correct unless they are clearly erroneous
3. an appellate court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which will often be so, that course should be followed
4. in evaluating claims of deficient performance for failing to investigate, an appellate court does not engage in second-guessing tactical decisions that might be characterized as mere Monday-morning quarterbacking