If I choose the wrong attorney to defend me, can’t I just later appeal the court-martial claiming that I had a bad defense counsel?

The claim that you received ineffective assistance of counsel (IAC) is an appeal that can be made following a court-martial. However, this claim must come with evidentiary support. It is not an easy claim to make and for that reason it often is not a successful argument on appeal. Counsel are presumed competent, and the strategic or tactical decisions made at trial are not generally second-guessed by appellate courts. However, appellate courts have found the performance of some defense counsel to be ineffective and therefore have given relief to servicemembers based on this poor representation.

The U.S. Supreme Court in Strickland v. Washington 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?
So, let’s say, for example, your defense counsel did not call a witness that you believe would have been extremely helpful to your case. As the appellant, you would have to show the appellate court that this witness was crucial to your case and that your attorney had no reasonable explanation for not calling the witness. Further, as the appellant, you would need to show that there is a reasonable probability that had the witness been called you would have been found not guilty.

Even more recently, the Supreme Court addressed IAC further in a dissent written by Justice Sonia Sotomayor in Reeves v. Alabama. In the dissent, Justice Sotomayor addresses whether or not the attorney who is alleged to be ineffective should be forced to testify regarding his or her actions in a federal case. Justice Sotomayor firmly states that there should be no categorical rule that the attorney facing the IAC claim must testify and explain his or her decisions during the case. She explains that this would be inconsistent with the Supreme Court’s prior ruling that an objective inquiry into the attorney’s effectiveness must be made based on the record of trial.

With this ruling, even if you appeal your court-martial based on IAC, the attorney who defended you will not be required to testify regarding the adequacy of your defense. Due to the fact that IAC claims against your attorney are difficult to make, it is extremely important that you pick the right attorney to defend you in your court-martial. If you or your loved one is facing a court-martial or wants to appeal one, it is very important that you pick an attorney with experience, who you will defend you fully. Don’t pick an inadequate defense attorney, because later, it will be very difficult to claim that he or she was ineffective.

I have a great deal of experience with court-martials and court-martial appeals. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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William E. Cassara- Military Law Attorney

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