U.S. v. Palik, 84 M.J. 284

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

1. an appellant will prevail on an ineffective assistance of counsel claim if he demonstrates both (1) that his counsel's performance was deficient, and (2) that this deficiency resulted in prejudice
2. when a claim of ineffective assistance of counsel is premised on counsel's failure to make a motion, an appellant must show that there is a reasonable probability that such a motion would have been meritorious
3. strategic choices made by counsel after a thorough investigation of the law and facts are virtually unchallengeable
4. an attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland v. Washington, 466 U.S. 668, 690-91 (1984)
5. deficient performance on a single issue may give rise to an ineffective assistance of counsel claim
6. in this case, the trial defense counsel provided ineffective assistance when they failed to bring a motion under RCM 914 for production of two OSI video-recorded statements of the complaining witness that had been lost by the government where (1) the trial defense counsel provided no reasonable explanation for their inaction, (2) their level of advocacy fell measurably below the performance ordinarily expected of fallible lawyers, and (3) there was a reasonable probability that such a motion would have been meritorious; regardless of the overall execution of their responsibilities as defense counsel, the fact remains that their performance was deficient because they failed to identify a meritorious and extraordinarily powerful RCM 914 motion readily available to them

Core Criminal Law Subjects: Witnesses: Confrontation

1. at the time of appellant's court-martial, RCM 914 provided that after a witness other than the accused has testified on direct examination, the military judge, on motion of a party who did not call the witness, shall order the party who called the witness to produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is, in the case of a witness called by trial counsel, in the possession of the United States; if the other party elects not to comply with an order to deliver a statement to the moving party, the military judge shall order that the testimony of the witness be disregarded by the trier of fact and that the trial proceed, or, if it is trial counsel who elects not to comply, shall declare a mistrial if required in the interest of justice

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

1. allegations of ineffective assistance of counsel are reviewed by an appellate court de novo
2. an appellate court applies a three-part test to determine whether the presumption of competence has been overcome: (1) Are appellant's allegations true; if so, is there a reasonable explanation for counsel's actions?; (2) If the allegations are true, did defense counsel's level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?; and (3) If defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?