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Who decides-tension between client and counsel

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 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.
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 counsel against testifying so long as it was a thoughtful recommendation based on all the facts. The courts will say that ultimately it was accused's choice not the lawyers.

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 his defense counsel.

[The accused] has "the ultimate authority" to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.

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 by initialing the following statements:

Capt BI and Capt RB have explained the pros and cons of my testifying. I know this is my decision to make regardless of their advice.

With full knowledge of my rights to testify, I choose [NOT TO] testify in my case.

After the Defense rested its case without Appellant having testified, a brief colloquy between the military judge and Appellant ensued. [Military Judge]: One thing to ask before we move on. Master Sergeant Alford, I noticed that you did not testify which is entirely your right to testify or not testify, but I just wanted to check in with you and make sure that that was your personal decision not to testify here in your court-martial today. [Appellant]: Yes, Your Honor.

Slip op. at 12.

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). Because this is a guilty plea case, Appellant must show not only that his counsel was deficient but also that “‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Id. at 289 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)).

See United States v. Osheskie, 63 M.J. 432 (C.A.A.F. 2006). The general rule is:

Defense counsel "undoubtedly has a duty to consult with the client regarding '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 the client must consent to the strategic decision made by counsel before counsel may proceed is a different question. See Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) ("Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has -- and must have -- full authority to manage the conduct of the trial.") (footnote omitted).

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

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