CAAF granted review of the following issue today:  “WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY APPLYING AN INCORRECT STANDARD OF REVIEW FOR PREJUDICE ARISING FROM POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL.”  United States v. Thompson, __ M.J. __, No. 10-0649/AF (C.A.A.F. Oct. 6, 2010).  AFCCA’s published decision in the case is available at 69 M.J. 516.

4 Responses to “CAAF grant”

  1. Socrates says:

    Interesting. Can you give us the Reader’s Digest summary? What standard did the court apply vs. what standard does appellant ask for? (Did the court forget to cite the ubiquitous Strickland standard?)

  2. Phil Cave says:

    They applied Strickland, and in one part:

    Next, we address the concession the appellant made in his clemency submission regarding the appropriateness [*9] of his punitive discharge and forfeitures. We find that the trial defense counsel made a strategic decision to forego seeking relief from the punitive discharge and forfeitures in an attempt, which proved successful, to reduce the appellant’s confinement. We will not second-guess this strategic decision. Moreover, assuming, arguendo, that the trial defense counsel did not have authority to concede the appropriateness of the appellant’s punitive discharge and forfeitures, we find no prejudice. Given the appellant’s crimes as well as the crimes and approved sentences of his co-actors, it is highly speculative whether the convening authority would have disapproved, mitigated, or suspended the appellant’s adjudged punitive discharge and forfeitures. 4 Put simply, the appellant’s trial defense counsel were not ineffective and the cumulative error doctrine does not apply.

    THe court also had this to say:

    The test for prejudice on a claim of ineffective assistance of counsel is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Under the aforementioned facts of this case, we find no prejudice.

    I wonder if DMLHS will confirm that Evitts v. Lucy applies and requires a Strickland analysis.

  3. nerdy says:

    You are a lower appellate court. Do you cite SCOTUS directly, or cite SCOTUS as it’s been interpreted in your jurisdiction? Not a hard question.

  4. Socrates says:

    Do you cite the Bible directly, or your local pastor? Do you cite Shakespeare directly, or your English professor? You’re right – its not a hard question.