Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

If a military defendant successfully raises a claim of ineffective assistance of counsel, the remedy will depend on the specific circumstances of the case. The remedy could include a new trial, a reduction in sentence, or some other form of relief.

The appeals court will review claims of IAC de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (To establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice. United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016). You should be aware that appellate courts strongly presume the counsel gave reasonable professional assistance. Also, you must show “a reasonable probability that, but for counsel’s [deficient performance] the result of the proceeding would have been different.” See United States v. Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022).

Your military appellate defense counsel can argue the cumulative effect of various errors when those errors aren’t necessarily significant. Also, in Cueto, the court said that

Perhaps in a rare case an attorney’s overall performance could be deficient even though the attorney did not make specific errors. See, e.g., People v. Raosto, 50 A.D.3d 508, 509, 856 N.Y.S.2d 86 (N.Y. App. Div. 2008) (holding that a defense counsel’s overall performance was deficient where the defense counsel “displayed general carelessness and inattention throughout the trial,” “appeared to be confused,” and was generally unsuccessful in cross-examining witnesses). But such cases usually would arise only when “the defendant can point to a long series of questionable omissions by counsel” that “were not simply the product of human fallibility, but the result of a lack of conscientious effort.” Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (4th ed. 2015).

Ineffectiveness claims can relate to pretrial preparations and advice on guilty plea negotiations, for action or inaction during trial, and for actions or inactions during the sentencing case.

United States v. Scott United States v. Scott, 2018 CCA LEXIS 522 (A.C.C.A., Oct. 30, 2018) aff’d 61 M.J. 79 (C.A.A.F. 2021), is an example of alleged military defense counsel failure during sentencing. But the courts decided the accused was not prejudiced based on the conduct of which convicted and other mitigating evidence in the record.

It is important to note that a claim of ineffective assistance of counsel is a complex legal issue. Anyone facing a court-martial should consult with an experienced military defense attorney to discuss their legal options.

The Sixth Amendment secures a criminal defendant’s right to effective assistance of counsel. Under Strickland v. Washington (1984), that right is violated when a lawyer’s performance falls below an objective standard of reasonableness, resulting in prejudice to the defendant. Counsel’s representation is prejudicial when there is a reasonable probability that, but for the lawyer’s deficiencies, the proceeding would have ended differently. Some defendants accept a plea bargain and then argue that their counsel was ineffective; in those cases, Hill v. Lockhart (1985) instructs a court to ask whether there is a reasonable probability that the defendant would have gone to trial had his counsel been constitutionally adequate. When the Court hears argument tomorrow in Premo v. Moore (09-658), it will attempt to clarify how Strickland and Hill apply to plea deals that are made after counsel fails to suppress an unconstitutionally obtained confession.

For those who want to go right to the papers here is the SCOTUSBlog page.

Appellate defense counsel initially raised one assignment of error to this court – that appellant’s conviction for uttering checks with intent to defraud was legally and factually insufficient. Upon our initial review, we specified the following issues: I. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN, AFTER PLEADING NOT GUILTY, HIS DEFENSE COUNSEL ARGUED DURING SENTENCING THAT: (1) APPELLANT “LIVED OUT THE FANTASY OF A SOLDIER WHO GOT [AN] INHERITANCE AND WHO HAD MONEY IN THE BANK,” AND; (2) APPELLANT, “OUT OF DESPERATION, . . . TOOK A CHECK FROM [HIS ROOMMATE], WROTE IT OUT FOR 300 DOLLARS, AND CASHED IT.” See United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997). II. ASSUMING, ARGUENDO, THAT APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON SENTENCING, WHAT IS THE APPROPRIATE REMEDY? See United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998).

So now what:

In United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997), our superior court stated that in general, when an accused has consistently denied guilt, a functional defense counsel should not concede an accused’s guilt during sentencing, not only because this can serve to anger the panel members, but also because defense counsel may be able to argue for reconsideration of the findings before announcement of sentence.

The court comes to this conclusion or evaluation of the defense tactics on sentencing:

We are at a loss as to how this tactic could possibly “preserve what little credibility [CPT D] had left with the panel so they would fully consider [appellant’s] sentencing case.” On the contrary, we believe it is much more likely that this tactic damaged counsel’s credibility and, as in Wean, “was directly contrary to appellant’s insistence upon his innocence.” See Wean, 45 M.J. at 463. The law in this area is in a state of flux, however, so we will assume arguendo that CPT D’s performance was deficient and proceed to our analysis of prejudice.

ACCA ended up affirming the findings and sentence because they found no prejudice to the appellant.

These cases and issues are TOUGH to do. On the one hand the client wants to litigate and that’s not a bad strategy even if it’s a litigate to mitigate case. But the quandry comes on how best to try and do damage control on sentencing. Here the client didn’t help.

I. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL INFORMED HIM HIS GUILTY PLEA MIGHT RESULT IN DEPORTATION. II. WHETHER COUNSEL’S ADVICE REGARDING DEPORTATION WAS INEFFECTIVE. SEE PADILLA V. KENTUCKY, 08-651 (2010); STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); HILL V. LOCKHART, 474 U.S. 52 (1985). III. IF APPELLANT’S COUNSEL WAS INEFFECTIVE, WHAT RELIEF, IF ANY, IS APPROPRIATE.

Remember Denedo?

From the headnotes in Hill:

In the present case it is unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because petitioner’s allegations were insufficient to satisfy the “prejudice” requirement. He did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility [474 U.S. 52, 53] date, he would have pleaded not guilty and insisted on going to trial. Nor did he allege any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether to plead guilty.

And from Padilla:

To satisfy Strickland ’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. , at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id. , at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the … right to remain in the United States’ ” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr , 533 U. S. 289 . Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland ’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance.

Issue: Whether the Tenth Circuit violated 28 U.S.C. § 2254(d)(1) by granting habeas relief for ineffective assistance of counsel during plea bargain negotiations to a defendant who was later convicted and sentenced in a fair trial, on the ground that the remedy the Oklahoma Court of Criminal Appeals gave to the defendant was constitutionally inadequate, given that the Supreme Court has not clearly established what remedy, if any, is appropriate for ineffective assistance of counsel in such a case. Now courtesy of the New York Times here is an article that defense counsel, trial counsel, and SJA’s may want to read. It’s a cautionary tale, or perhaps just entertaining.

Now here is a piece courtesy of Wall Street Journal:

According to a new paper published in Psychology, Public Policy, and Law, lawyers aren’t very good at predicting the outcome of their own cases. Why? Because they’re often biased in favor of their own chances. Click here for a blog post on the study from the Chronicle of Higher Education.

Here’s a link to Goodman-Delahunty, Granhag, Hartwig, and Loftus, Insightful or Wishful Thinking: Lawyers’ Ability to Predict Case Outcomes, 16 Psych., Pub. Policy & Law, 133 (2010).

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.

Title: Jones v. Williams Docket: 09-948 Issue: Whether the Tenth Circuit violated 28 U.S.C. § 2254(d)(1) by granting habeas relief for ineffective assistance of counsel during plea bargain negotiations to a defendant who was later convicted and sentenced in a fair trial, on the ground that the remedy the Oklahoma Court of Criminal Appeals gave to the defendant was constitutionally inadequate, given that the Supreme Court has not clearly established what remedy, if any, is appropriate for ineffective assistance of counsel in such a case. Opinion below (10th Circuit, rehearing denied) Petition for certiorari Brief in opposition Petitioner’s reply The relevant “facts.”

Pity Oklahoma doesn’t have the CCA’s awesome powers of de novo review.

I don’t think the defense counsel’s belief in the client’s innocence is the deciding factor, is it? The question is based on the likely evidence admissible at trial can the prosecution prove the case and get a conviction. Regardless of your own belief in the client’s innocence the weight of the likely evidence and the client’s desires come first?

Essentially the court finds that even if there were IAC, petitioner has not established prejudice.

Back to CAAF?

As it stands, the case represents a good discussion of defense counsels obligations regarding advice to the client regarding collateral consequences. I find this interesting in light of CAAF’s apparent mandate from United States v. Miller to discuss sex offender registration issues with the client. Except for Miller, I don’t see that the law does not require a defense counsel to discuss collateral consequences with the client. However, if she does then she’s got to get it right.

How can Denedo be squared with Miller?

There is no need to look further than the first prong of the Polk analysis above to determine that Appellant did not receive ineffective assistance of trial defense counsel. Although the requirement of registering as a sex offender is a serious consequence of a conviction, trial defense counsel’s failure to advise Appellant of this consequence does not rise to the level of ineffective assistance of counsel.

United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006).

However, later the court imposes this requirement of defense counsel and the military judge.

In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing. Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

Miller, 63 M.J. at 459.

I have commented some time ago about the number of foreign nationals enlisted into the military, are not the consequences of a conviction of strong importance to them if it entails the possibility of removal? Will CAAF impose a new requirement in such a case, in same way this was done in Miller? If not, why not?

Department of Homeland Security (DHS) Secretary Janet Napolitano commemorated the milestone of more than 52,000 American military service members becoming U.S. citizens since Sept. 11, 2001.

Homeland Security release, 10 September 2009, Speech of Secretary Gates, Fort Bragg, 23 October 2008,

Distinguished guests, and the families of our new citizens, thank you all for coming. It is a pleasure to be at Fort Bragg. And what an honor to be able to welcome into citizenship 41 men and women who have served and sacrificed for their country even before it officially was their country.

and prior posts here, here, and here.

Been gone for a family emergency so I won’t go too far back. But . . .

DoD reports that:

Thirty-two specifications of attempted premeditated murder were preferred today against alleged Fort Hood, Texas, shooter Army Maj. Nidal M. Hasan under Article 80 of the Uniform Code of Military Justice.

This makes sense. Normally loading up the charge sheet doesn’t help case efficiency, especially with minor offenses added to the more serious. Here however we have significant charges and all goes toward supporting a capital referral.

DoD reports a review panel trip to Fort Hood.

Today’s trip to Fort Hood was important to starting the review, Clark, a former chief of naval operations, said. “It was important to me to see the site, walk the ground and really see the setting,” he said. “Today’s activities have been immensely valuable in providing the baseline of factual information upon which we will grow the rest of the information that is required to conduct the assessment.”

Question, assuming that witnesses or others involved in the case talked with the investigators, are their statements discoverable?

United States v. Maharrey, post-trial delay case.

United States v. Thornton. Appellant raises ineffective assistance of counsel (IAC) and sufficiency of the evidence. The findings and sentence are set-aside based on the IAC. The IAC relates to several issues: failure to properly advise on forum; failure to prepare appellant to testify; failure to cross-examine some witnesses. A DuBay (United States v. DuBay, 37 C.M.R. 411 (1986)) hearing was ordered. The military judge found several issues of IAC. The DuBay judge did not agree with all the allegations of IAC.

The DuBay judge opined that the trial defense counsel made “two separate clusters of decisions that constitute ineffective assistance of counsel.” The first cluster relates generally to counsel‟s failure to timely file a motion pursuant to MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). The DuBay judge opined that the trial defense counsel was ineffective when he failed to take the steps necessary to develop, preserve, and present this defense theory at trial. Id. We agree. We acknowledge that the trial defense counsel faced an uphill battle in terms of gathering information. He requested both TG and her mother to testify at the Article 32, UCMJ, hearing. Both refused. Their statements to NCIS were included in the Article 32 record. Thereafter, both TG and her mother steadfastly refused to speak with the trial defense counsel at any time leading up to trial with the exception of a five-minute interview with TG‟s mother at the beginning of trial, which was swiftly terminated by the witness. In response, the trial defense counsel never requested a deposition of either TG or her mother under RULE FOR COURTS-MARTIAL 702, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). The discussion under R.C.M. 702(c)(3)(A) articulates several “exceptional circumstances” under which a request for a deposition of a witness “unavailability of an essential witness at an Article 32 hearing.” Further, the trial defense counsel failed to formally request an opportunity to interview either TG or her mother prior to or following their direct examination by the Government. The trial defense counsel‟s testimony at the DuBay hearing that he “got all of the evidence … we wanted,” shows a fundamental lack of comprehension of what was needed to properly present the defense theory of the case. The second cluster of decisions identified by the DuBay judge as ineffective centered on the appellant‟s failure to testify. In essence, the DuBay judge held that the appellant was unable to testify at trial due to the trial defense counsel‟s failure to prepare the appellant to take the stand in the event he needed to do so. While we agree that the trial defense counsel‟s failure to actively prepare the appellant to testify and for cross-examination was far less than optimal, we do not agree that counsel‟s stated tactical desire to avoid having the appellant appear “prepared” was so far outside the norm as to be objectively unreasonable. We make this determination fully cognizant of the fact that the trial defense team did conduct at least some question/answer preparation with the appellant‟s wife on the eve of trial.