Is it IAC

The Court of Appeals for the Armed Forces has granted a petition on the following issue:


Here is a link to the AFCCA opinion in United States v. McIntosh, ACM 37977, 2014 CCA LEXIS 29 (A. F. Ct. Crim. App. January 17, 2014).

Keep in mind that when there is an issue of ineffective assistance of counsel during trial there is a strong presumption that the defense counsel did provide constitutionally effective assistance.  The standard of review goes something like this.

The appellant must establish that:

(1) that his counsel’s performance was deficient, and

(2) that this deficiency resulted in prejudice.

That is that the representation amounted to incompetence under the professional norms applicable at the time of the representation.

In evaluating counsel’s performance under the first Strickland v. Washington, 466 U.S. 668 (1984), prong, appellate courts allow a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Military courts follow and apply Strickland to IAC claims.  See e.g., United States v. Green, 68 M.J. 360 (C.A.A.F. 2010).

Interestingly, at AFCCA the appellant raised 19 issues for why his conviction and sentence was unfair, but he did not specify the issue in the language CAAF granted.  Many of his issues seem to focus on a “failure” to fully litigate the case at the Article 32, UCMJ, investigation and thereby get the charges dismissed.  His IAC claims were:

The appellant claims his trial defense counsel were ineffective before, during, and after his trial because they failed to: (1) Advise him to wear the proper uniform for the Article 32, UCMJ, hearing; (2) Present exculpatory evidence at the Article 32, UCMJ, hearing; (3) Request a bill of particulars; (4) Dispute the charges at the Article 32, UCMJ, hearing; (5) submit defense objections to the Article 32, UCMJ, Investigation Officer (IO) in writing; (6) Contest the IO’s decision that BH was not reasonably available; (7) Cross-examine Detective RP regarding her knowledge of the appellant’s whereabouts or her interview with BH; and (8) Introduce evidence from the 2007 and 2010 sexual assault examination reports. He also contends his counsel left two Air Force Office of Special Investigations reports of investigations out of the record of trial prior to authentication, and improperly included a note from the appellant in the defense clemency submissions. He asks this Court to set aside the findings and the sentence because his counsel did not provide him with effective assistance.

Military appellate courts use a three part test to decide if the appellant has overcome the presumption of competence.

1. Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions . . . ?

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, [there would have been a different result]?

United States v. Polk, 32 M.J. 150 (C.M.A. 1991).

Keep in mind when judging IAC:

The fact that their overall plan was not ultimately successful does not invalidate the defense strategy.

The fact that their overall plan was not ultimately successful is not proof of IAC.

See  United States v. Kibler, 43 M.J. 725, 730 (Army Ct. Crim. App. 1995) (“The test of counsel’s performance is not that he lost; and, it is not that some number of options were not pursued,” but rather whether the adversarial process was reliable enough to produce a just result);
United States v. Miller, 64 M.J. 666, 673 (A.F.C.C.A. 2007).

So, it will be interesting to see how this case is decided – a resolution is not immediately obvious from reading the AFCCA opinion or the granted issue – give me the facts.


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