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Who decides-client or counsel

We believe coummication with the client is very important so as your military defense counsel we make every effort to keep you informed about your case, what we are doing, and whenever possible consult with you about strategy and decisions.

Unless we say different, we as your civilian military defense counsel are lead counsel and the military defense lawyer is co-counsel who works under our supervision and as part of the team. This means that we "call the shots" on just about everything. That does not mean that we don't listen to you--we do. That does not mean we don't listen to the military defense counsel--we do. A team effort is the best way to get the best result for you. However, there are several decisions where all we can do is give you our best advice and you are the one who calls-the-shot. So what decisions are yours alone to make.

  • Who will be your lawyers.
  • Will you plead not guilt or guilty.
  • Will you choose a judge alone or members (jury) trial.
  • Will you testify.
  • Will you be silent, make an unsworn statement, or testify during sentencing.

It is not uncommon for a military defense counsel to recommend against testifying. There are a number of reasons for this. Some of them relate to the client and whether or not he will be looked at as not being credible. Some people are not good at public speaking or they don't "act" well under cross-examination or there are some negative facts that could come out in cross-examination. A good military defens lawyer will thoroughtly discuss testifying--or they should.

And, a good defense counsel should still prepare the client to testify through practice sessions. It may be that the case is not going well and it is decided that it is in fact best for the client to testify. We at Cave & Freeburg have had a number of cases where good pretrial preparation lead to the client testifying and to being found not guilty.

There are cases where the client, after trial, decides it was a wrong decision not to testify. Here is a situation where the military defense lawyers client claimed that his lawyers advice not to testify along with a failure to call some witnesses harmed his defense. "We disagree," was the appeals court's response. United States v. Alford, AFCCA (2018). It is not ineffective for a military defense counsel to recommend you not testify. But the recommendation must be based on all of the facts, doing proper legal research, and a thorough analysis of the evidence. The courts will say that ultimately it was accused's choice not the lawyers.

Another point is that regardless of what will be the ultimate decision on testifying, the military defense lawyers must engage in pretrial preparation as if you will testify. This means having practice sessions, discussing important cross-examination questions, and giving you guidance on how to testify. 

The law is clear that an accused has the absolute right to plead guilty or not guilty, to have a jury or judge trial, to testify or not, and to make a statement on sentencing. All other decisions are within the discretion of your military defense counsel.

Florida v. Nixon, 543 U.S. 175, 187 (2004)(citations omitted).

In Alford, the advice not to testify “was reduced to writing, and Appellant acknowledged his rights had been explained and that it was his absolute right to testify or not testify regardless of what advice his lawyers had given him.

The Strickland test governs ineffective assistance of counsel claims in cases involving guilty pleas. United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000). In a guilty plea case,

  • You must show what the military defense counsel did wrong;
  • that there was a reasonable probability that, but for the errors, [you] would not have pleaded guilty, and 
  • You would have elected trial.

See United States v. Osheskie, 63 M.J. 432 (C.A.A.F. 2006). 

A military defense counsel must discuss with you the 'important decisions,' including questions of overarching defense strategy." Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); see also Pineo v. State, 2006 ME 119, PP 12-16, 908 A.2d 632, 638-39 (applying Nixon in a non-capital case). 

Whether you consent to the strategic decision made by your military defense counsel is a different question. See Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).

United States v. Larson, 66 M.J. 212, 218 (C.A.A.F. 2008).

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