NMCCA has 6 new decisions – 1 reversed for IAC

NMCCA has issued six new decisions, of which four are merits.

United States v. Maharrey, post-trial delay case.

United States v. Thornton.  Appellant raises ineffective assistance of counsel (IAC) and sufficiency of the evidence.  The findings and sentence are set-aside based on the IAC.  The IAC relates to several issues:  failure to properly advise on forum; failure to prepare appellant to testify; failure to cross-examine some witnesses.  A DuBay (United States v. DuBay, 37 C.M.R. 411 (1986)) hearing was ordered.  The military judge found several issues of IAC.  The DuBay judge did not agree with all the allegations of IAC.

The DuBay judge opined that the trial defense counsel made “two separate clusters of decisions that constitute ineffective assistance of counsel.”  The first cluster relates generally to counsel‟s failure to timely file a motion pursuant to MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.).  The DuBay judge opined that the trial defense counsel was ineffective when he failed to take the steps necessary to develop, preserve, and present this defense theory at trial. Id. We agree.

We acknowledge that the trial defense counsel faced an uphill battle in terms of gathering information. He requested both TG and her mother to testify at the Article 32, UCMJ, hearing. Both refused. Their statements to NCIS were included in the Article 32 record. Thereafter, both TG and her mother steadfastly refused to speak with the trial defense counsel at any time leading up to trial with the exception of a five-minute interview with TG‟s mother at the beginning of trial, which was swiftly terminated by the witness.

In response, the trial defense counsel never requested a deposition of either TG or her mother under RULE FOR COURTS-MARTIAL 702, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). The discussion under R.C.M. 702(c)(3)(A) articulates several “exceptional circumstances” under which a request for a deposition of a witness "unavailability of an essential witness at an Article 32 hearing.”

Further, the trial defense counsel failed to formally request an opportunity to interview either TG or her mother prior to or following their direct examination by the Government.

The trial defense counsel‟s testimony at the DuBay hearing that he “got all of the evidence … we wanted,” shows a fundamental lack of comprehension of what was needed to properly present the defense theory of the case.

The second cluster of decisions identified by the DuBay judge as ineffective centered on the appellant‟s failure to testify. In essence, the DuBay judge held that the appellant was unable to testify at trial due to the trial defense counsel‟s failure to prepare the appellant to take the stand in the event he needed to do so.

While we agree that the trial defense counsel‟s failure to actively prepare the appellant to testify and for cross-examination was far less than optimal, we do not agree that counsel‟s stated tactical desire to avoid having the appellant appear “prepared” was so far outside the norm as to be objectively unreasonable. We make this determination fully cognizant of the fact that the trial defense team did conduct at least some question/answer preparation with the appellant‟s wife on the eve of trial.