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Thursday, April 08, 2004
According to the Supreme Court as laid out in Strickland v. Washington, 466 U.S. 668 (1984), the claim of ineffective assistance of counsel has two components. First, a convictee must prove both deficient performance and prejudice. To the court's credit, they correctly pointed out that after the trial judge allowed the confession in, the defendant pled guilty in a provident manner, thereby waiving the ability to challenge the ruling on appeal. Since the ruling could not be challenged, and that was the only assignment of error that was raised on appeal to CAAF, the court had no choice but to find that there was no prejudice. If the court had stopped there, everything would be fine.
Unfortunately, Judge Erdmann included some truly troubling dicta that threatens to erode the court's jurisprudence on ineffective assistance of counsel, only days after the Army Court of Criminal Appeals ruled the other way in the Fort Bragg Ranger Murder death penalty case. First, the court suggests that simply because a military lawyer was assigned, and because he filed some cursory paperwork, that this was effective assistance:
Addressing those facts, we said, “Where, as in this case, appellate counsel do nothing, an appellant has been effectively deprived of counsel, and prejudice is presumed.” May, 47 M.J. at 481.
Adams, however, was not wholly unrepresented before the Court of Criminal Appeals. At all times he had detailed military appellate defense counsel who undertook various actions in the case. The initial military counsel communicated with Mr. Cassara, ascertained that Mr. Cassara would represent Adams before the Army court and thereafter filed several motions for continuance. The next military counsel did not contact Adams or Mr. Cassara, but did file three motions for continuance.
Second, the court (as have previous courts in case after case) relies heavily on the Strickland v. Washington doctrine, developing a body of case law that largely parallels that of the various civilian Courts of Appeal. This alone should be cause for concern. Civilian courts have been very hostile to ineffective assistance of counsel claims. Military appeals courts face a different set of public policies. Military members "ha[ve been] provided . . . with counsel rights broader than those available to their civilian counterparts . . . [because of the] unique nature of military life, in which members are subject to worldwide assignment and involuntary deployment under circumstances when civilian counsel are not readily available." U.S. v. Spriggs, 52 M.J. 235, 237 (C.A.A.F. 2000). Military members receive rights greater than civilian defendants in the areas of rights warnings and pretrial discovery. In the realm of counsel, military members receive military counsel regardless of the ability the pay, unlike the civilian arena where you only get one if you can't afford an attorney, and only at the "critical stage." Given this background of broad rights, and after the Army Court's opinion two weeks ago in Kreutzer, why would CAAF write such dicta? Why doesn't the court depart from civilian jurisprudence (a doctrine that is almost uniformly assailed by the academic community) and fulfill the promise of the UCMJ in guaranteeing truly effective assistance of counsel?