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Virginia State Bar
Department of the Army
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Who decides-tension between client and counsel

In the request for clemency to the convening authority, Appellant disclosed he was advised by his trial defense counsel not to testify and thus did not testify. Now on appeal, Appellant felt strongly “that a number of very important facts pertaining to [his] innocence were not considered by the court.” Appellant contends that this advice of counsel coupled with the counsel’s failure to call several defense witnesses resulted in ineffective assistance of counsel. We disagree.

United States v. Alford, AFCCA (2018).

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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