Let me start this blog by making one thing clear, not every bad result in a court-martial is due to mistakes made by your defense counsel. There can be many reasons for a poor result. However, sometimes servicemembers are represented by defense counsel who make costly mistakes or simply prove to be inadequate in their representation. If this is the case, there may be a valid appeal at the military appellate courts. The appeal to be made to these courts is that you had “ineffective assistance of counsel” or “IAC.” This past July, I represented an Army Major in United States v. Smith, who had been convicted of cocaine use based on a random urinalysis. His conviction was overturned by the Army Court of Criminal Appeals (ACCA) because they found that his military defense counsel at the court-martial, MAJ BG, was inadequate. It is not easy to show that one’s counsel was ineffective. Counsel are presumed competent, and the strategic or tactical decisions made at trial are not generally second-guessed by appellate courts. However, in this case MAJ BG made two major mistakes that prejudiced my client.
First, MAJ BG failed to request the litigation packet required to enter into evidence, a negative hair follicle test that was performed after the urinalysis on my client. Following the urinalysis, my client was shocked that his urine had tested positive for cocaine when he absolutely had not used cocaine. Therefore, he immediately had a hair follicle test conducted by a civilian company, and that test found no trace of cocaine in his hair. Despite this result, my client’s command referred his case to a court-martial. Even though his defense counsel, MAJ BG, had a full year to request a litigation packet from the civilian company which performed the hair follicle test, he failed to do so in time. Therefore, at my client’s court-martial, MAJ BG was unable to enter the negative test into evidence as part of his defense. MAJ BG was also limited in his ability to fully use this negative result during his cross-examinations. Following my argument to ACCA, ACCA found that MAJ BG’s failure to request the litigation packet in time for use at the court-martial was inadequate.
The second mistake that MAJ BG made during my client’s court-martial is that he did not call my client’s supervisor as a witness. The supervisor would have testified that my client, an Army doctor, was on rotation the morning that he was called in for the urinalysis and was therefore not required to take the urinalysis. This testimony would have bolstered my client’s credibility and supported my client’s testimony.
The U.S. Supreme Court has held that in order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel’s performance was deficient, and the deficiency resulted in prejudice. A military appellant bears the burden with respect to three questions:
1. Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case?
2. If they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?
3. If ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had reasonable doubt respecting guilt?
In U.S. v. Smith, we were able to show to ACCA that the answer to each of these questions was yes. ACCA found that my client was prejudiced by his defense counsel’s mistakes. Further, ACCA found that if the defense counsel had not made these mistakes, “there is a reasonable probability that the result of appellant’s trial would have been different.” ACCA therefore, set aside my client’s findings of guilty and his sentence. This was the right result for my client. If you truly believe that your defense counsel’s performance during your court-martial is the reason you received a poor result, you may have a valid appeal. I have a great deal of experience with court-martials and court-martial appeals. Call me and I will give you my honest opinion about your case. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.