On today’s CAAF daily journal we find:
No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:
- WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.
- WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.
Then Navy-Marine Corps Court said:
Here, after adequate investigation into the matter, trial defense counsel made a tactical decision not to call any of the potential character witnesses that the appellant suggested. The tactical reasoning behind this decision was to avoid opening the door to potentially damaging evidence that the Government could offer in rebuttal. This tactical reasoning was reasonable and, as such, we agree with the conclusion of the DuBay judge that trial defense counsel was not deficient in failing to call sentencing witnesses.
Trial defense counsel also decided not to offer any military records documenting the appellant’s combat deployments. Trial defense counsel again expressed concern that offering such evidence would do more harm than good by opening the door for rebuttal by the Government. With the benefit of hindsight, the tactical reasoning is questionable since it is unlikely that the Government could have effectively rebutted official military documentation of the appellant’s deployment history.
Interesting, because I just did a case where we argued for a Dismissal only (and got it). And I’d had the discussion with military counsel about the Blunk letter we used to have in the old days.
In United States v Blunk we held that defense counsel “violates no legal or ethical principle in . . . following . . . instructions to present nothing on” the accused’s behalf which might influence the court-martial to reject a punitive discharge as an appropriate punishment.
United States v. Weatherford, 19 U.S.C.M.A. 424, 425, 42 C.M.R. 26, 27 (C.M.A. 1970).
Standard Blunk letters became the norm for a case–actually the few–cases of BCD Strikers. See United States v Blunk, 17 USCMA 158, 160, 37 CMR 422 (1967).
Hence, we believe the better practice in any case is for counsel, if he desires to protect himself against later, unjustified attack, to secure a statement in writing from his client and retain the same in his possession. In event of the accused’s later disavowal of meaures for which he himself is responsible, it can be made available as evidence that the allegations are in fact false. And certainly we would not expect any appellate attorney, as an officer of the court, to level an attack on trial defense counsel without first making inquiry of their mutual client in order to ascertain the facts.
United States v. Blunk, 17 U.S.C.M.A. 158, 161, 37 C.M.R. 422, 425 (C.M.A. 1967).
I will say that we very quickly got away from BCD-Sriking, especially in MJA cases. Too often the MJ would give the BCD, but was going to anyway, and also some hefty Brig time because the accused did not see the severity of the BCD.