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.

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.