Military Appellate Law: Robust and Unique Protections for Servicemembers (Part II)

In part I of this blog series on military appellate law, I discussed how the two-tiered appellate system works and how it provides unique protections for servicemembers appealing their court-martial results.  In part I, I also explained that servicemembers can raise unique issues on appeal.  The unique appellate issue I will discuss in this part is ineffective assistance of counsel (IAC).

In raising IAC, appellants may argue that their defense counsel who represented him or her at the court-martial level was “ineffective” in representing him.  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 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 arguing IAC 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.  There are many valid IAC cases in military appellate law.  For example, in United States v. Spurling, the Navy-Marine Court of Criminal Appeals (N-MCCA) found that an appellant had received IAC when his counsel failed to attempt to suppress a statement that appellant made to one of his supervisors without being read his Article 31(b) rights.  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 in the military.  This is one of many protections provided to servicemembers in military appellate law.  I have argued IAC on behalf of my clients in numerous cases.  Call me now if you want to discuss your case.  The call is free.  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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