CAAFs leap-day opinion in United States v. Bradley, No. 11-0399/NA (Bradley II), finally resolves the fallout from a trial counsel’s Kastigar violation nearly a decade ago. As I wrote in the argument preview:
The appellant [charged with attempted murder, etc.] entered into a pretrial agreement that included an agreement to testify in the trials of his co-actors under a grant of immunity. Appellant met with prosecutors and testified, however he eventually withdrew from his PTA. The appellant was subsequently prosecuted by a trial counsel who had knowledge of his immunized statements. He moved both to dismiss and to disqualify the trial counsel; both motions were denied by the trial military judge. He then entered guilty pleas pursuant to a new pre-trial agreement.
Bradley II presents fairly technical issues about the interplay between CAAF and a CCA considering a case on remand. But the court, in a unanimous decision (Chief Judge Baker concurring), charts a fairly simple course and focuses on the matter of ineffective assistance of counsel to resolve the case in favor of the government.
First, in a footnote on the first substantive page of the opinion, the court subtly states a significant rule: “Furthermore, the law of the case issue is without merit, as the CCA cannot be bound by an earlier judgment this Court set aside.” Slip op. at 2, N. 1 (emphasis added).
Then, the court avoids determining if the appellant’s counsel was deficient because it easily concludes that even if he was deficient, the appellant suffered no prejudice. In language that is a primer on prejudice analysis, the court explains that:
Appellant further argued in his brief that because the CCA in Bradley I indicated that he would have prevailed on having trial counsel disqualified, he has shown prejudice.
When an appellant argues that counsel was ineffective for erroneously waiving a motion, it makes sense to deny the claim if the appellant would not be entitled to relief on the erroneously waived motion, because the accused cannot show he was harmed by not preserving the issue. However, the accused is wrong to assume the opposite is true — merely being entitled to relief on an erroneously waived motion does not by itself satisfy the prejudice analysis in the guilty plea context. Appellant also must satisfy a separate, objective inquiry — he must show that if he had been advised properly, then it would have been rational for him not to plead guilty. In this case, it would not have been rational for Appellant to reject his pleas.
Even if the military judge had disqualified trial counsel, it would not have changed the nature of the evidence Appellant faced.
Slip op. at 9-10 (citations omitted) (emphasis added).
Judge Stucky’s opinion is a reminder to avoid fixating on an error, and to look instead to the prejudice and the appropriate remedy. The Chief Judge’s concurring opinion shares this point, and it makes for a quiet ending to this long-lived case.
• Bradley I: N-MCCA opinion
• Bradley I: CAAF oral argument audio
• Bradley I: CAAF opinion
• Bradley I: Blog post: CAAF issues two more opinions
• Bradley II: N-MCCA opinion
• Bradley II: Appellant’s brief
• Bradley II: Appellee’s (government) brief
• Bradley II: Blog Post: Argument preview
• Bradley II: CAAF Opinion
• Bradley II: Blog Post: Opinion analysis