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.” It is not easy to show that one’s counsel was ineffective. Counsel are presumed competent, and the strategic or tactical decisions made at a court-martial 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 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?
So, let’s say, for example, your defense counsel did not call a witness that you believe would have been extremely helpful in your court-martial. 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. Additionally, you would have to show that the level of advocacy from your defense counsel fell below what is ordinarily expected. Finally 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. There are valid IAC cases out there. In fact, the Court of Appeals for the Armed Forces (CAAF) just recently granted review of a Marine case, U.S. v. Captain, based on IAC because the defense counsel may not have presented an adequate sentencing case. 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.