IAC Category Archives — Page 2 of 2 — Court-Martial Trial Practice Blog Published by International Military Lawyer

IAC by not filing motions

October 18, 2014 | The Law Office of Philip D. Cave

Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue. The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King. The issue of IAC for failure to raise a pretrial motion is neither novel nor rare. Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion. I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges. A more common issue is a motion to suppress, or speedy trial, or UCI.

Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”

IAC in the PTA process

December 16, 2012 | The Law Office of Philip D. Cave

Peeking Behind the Plea Bargaining Process

Laurie L. Levenson

Loyola Law School Los Angeles
December 11, 2012
Loyola of Los Angeles Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2012-49

Abstract:
The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.

Number of Pages in PDF File: 45

IAC

August 21, 2012 | The Law Office of Philip D. Cave

Andrea D. Lyon, The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough, The Champion, NACDL, June 2012.

In the Supremes

March 21, 2012 | The Law Office of Philip D. Cave

In addition to oral argument in Vazquez (link to argument here), the court issued several opinions of relevance to military trial and appellate practitioners: what are the “rules” and standards for IAC in regard to pretrial negotiations.

Lafler v. Cooper and Missouri v. Frye.

the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.” Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

In the Supremes

October 11, 2010 | The Law Office of Philip D. Cave

Today the court will hear oral argument in Premo v. Moore, a case with potential ramifications for court-martials. Courtesy of SCOTUSBlog here is a summary:

The Sixth Amendment secures a criminal defendant’s right to effective assistance of counsel. Under Strickland v. Washington (1984), that right is violated when a lawyer’s performance falls below an objective standard of reasonableness, resulting in prejudice to the defendant. Counsel’s representation is prejudicial when there is a reasonable probability that, but for the lawyer’s deficiencies, the proceeding would have ended differently. Some defendants accept a plea bargain and then argue that their counsel was ineffective; in those cases, Hill v. Lockhart (1985) instructs a court to ask whether there is a reasonable probability that the defendant would have gone to trial had his counsel been constitutionally adequate. When the Court hears argument tomorrow in Premo v. Moore (09-658), it will attempt to clarify how Strickland and Hill apply to plea deals that are made after counsel fails to suppress an unconstitutionally obtained confession.

For those who want to go right to the papers here is the SCOTUSBlog page.

ACCA on IAC

August 20, 2010 | The Law Office of Philip D. Cave

In United States v. Darling, ACCA affirmed because appellant could not establish the prejudice prong of an IAC “claim.” This is worth reading for those cases where the accused is found not guilty after a contested case, but during sentencing there is a concession that the accused was actually guilty. For the defense counsel this case addresses the issues of how to do sentencing and try to get a lower sentence.

Appellate defense counsel initially raised one assignment of error to this court – that appellant’s conviction for uttering checks with intent to defraud was legally and factually insufficient. Upon our initial review, we specified the following issues:

I.