Court-Martial Trial Practice Blog
Self-assessment. As a supervisor of counsel, I would ask them to come to me after trial and discuss what they think the three best and worst things they did. I was intent on mentoring them to reinforce the good and see if, any truly bad issues could be resolved in the future. Like you, I spend time after trial wondering ‘what if.’ Such ruminations are helpful and necessary. But . . .
The initial claim of ineffectiveness centered on an email appellant’s civilian defense counsel (CDC) sent his military defense counsel. In the email, the CDC expressed a low opinion of his trial performance, writing, “I screwed up crossing [the victim]. I alone was ineffective. . . .”
We first address the weight we should give the civilian defense counsel’s opinion contained in an email that he was “ineffective.” We give it slight weight for two reasons. First, as the Supreme Court has stated, “After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome.” Harrington v. Richter, 562 U.S. 86, 109 (2011). Second, a counsel’s subjective evaluation is of only marginal relevance in resolving an objective inquiry. Strickland requires an objective inquiry. 466 U.S. at 688.
United States v. Tovarachavez, ACCA 2018.