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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 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 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). 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).
