Ineffective assistance of counsel

Today, SCOTUSBlog tells about some grants and denials.  One may be of interest to military justice practitioners.

they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan. . . . That order drew a sharp 14-page dissent[.]

Here is a link to the order.


In Reeves v. Alabama, the justices declined to wade into the question of when an attorney’s representation of a criminal defendant is so inadequate that it violates the defendant’s Sixth Amendment right to have help from an attorney, and how courts should make that determination. In Strickland v. Washington, the Supreme Court outlined a standard for courts to use to decide whether an attorney was constitutionally ineffective: (1) the attorney’s performance must be deficient; and (2) the defendant must have been prejudiced by that deficient performance – that is, he must show a reasonable probability that, if the attorney had not been deficient, the result would have been different.

Hennis anyone?  Counsel are often required by the AFCCA to provide affidavits in response to IAC claims, the other Service courts less so.  How do we take this statement from the dissenting justices?

Sotomayor began by emphasizing that there “can be no dispute” that a categorical rule requiring attorneys to testify in federal cases alleging ineffective assistance of counsel would be inconsistent with the Supreme Court’s rulings “requiring an objective inquiry into the adequacy and reasonableness of” the attorney’s performance “based on the full record before the court.” Indeed, Sotomayor stressed, even “Alabama does not defend such a rule.” Instead, she continued, the dispute in Reeves’ case was whether the Alabama state court “in fact imposed such a rule.”

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