Mr. Pristera Argues US V. Cook at the Air Force Court of Criminal Appeals – Ineffective Assistance of Counsel and New Trials at Issue

On November 17, 2016, Mr. Pristera argued the case of United States v. Cook on appeal at the United States Air Force Court of Criminal Appeals. The unique appeal presented diametrically opposing positions where Mr. Pristera had to concurrently argue for a new trial based on newly discovered evidence under R.C.M. 1210, and also ineffective assistance of counsel for the defense counsel’s failure to locate the evidence. The newly discovered evidence was a witness that was discovered a few days after the trial that could have impeached the alleged victim’s testimony. The Air Force Court was very professional and non-confrontational. They were clearly prepared for the appeal and asked very targeted intelligent questions. We expect a decision in this case in early 2017. It is so important that counsel properly investigate cases before trial. Below is an introduction to the law of ineffective assistance of counsel. Ineffective assistance of counsel claims are subject to a de novo standard of review. United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997), citing S. Childress & M. Davis, Federal Standards of Review, § 12.09 (2d ed. 1982.) United States v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002). A military accused has a constitutional right to the effective assistance of counsel.United States v. Denedo, 66 M.J. 114, 127 (C.A.A.F. 2008), aff’d, 129 S.Ct. 2213 (2009); United States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987) (citing Strickland v. Washington, 466 U.S. 668 (1984)). The burden of proof lies with the Appellant, and he “must surmount a very high hurdle” and overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”Strickland, 466 U.S. at 689; Denedo, 66 M.J. at 127 (citing United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). This presumption of competence cannot be overcome unless the accused demonstrates: first, a deficiency in representation, and second, prejudice. Scott, 24 M.J. 186. Firstly, the defense counsel’s deficiency must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.”Denedo, 66 M.J. at 127-28 (citing United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997). Examples of failures that can constitute a deficiency in representation are affirmative misrepresentations of the law, failures to investigate defenses, witnesses, or evidence, or specific errors made which were unreasonable under prevailing professional norms.SeeUnited States v. Cronic, 466 U.S. 648 (1984); Denedo, 66 M.J. at 127-28; Scott, 24 M.J. at 188. As a general matter, however, the Court “will not second-guess the strategic or tactical decisions made at trial by defense counsel.”Perez, 64 M.J. at 243 (citing United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (citations omitted)). Additionally, “[t]he reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances.”Scott, 24 M.J. at 188. Secondly, the defendant must be prejudiced by errors “so serious as to deprive the defendant of a fair trial.” Denedo, 66 M.J. at 127-28 (citing Moulton, 47 M.J. at 229). The test for prejudice is whether, in “consider[ation of] the totality of the evidence before the factfinder,” there is a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”Scott, 24 M.J. at 189 (citing Strickland, 466 U.S. at 695). In Scott, the Court of Military Review applied the Strickland test and found that the defense attorney’s performance was both deficient and prejudicial.Scott, 24 M.J. at 192. In that case, the defense was based on alibi. Id. at 189-90. The defense attorney did not timely investigate the defendant’s alibi and did not follow up after a volunteer investigator located possible witnesses. Id. at 189-90. At a DuBay hearing, it was determined that one of the witnesses would likely have been able to corroborate the defendant’s alibi defense had the defense attorney timely interviewed her and adequately prepared her for trial.Id. The Court found that in “light of reasonable professional norms … [defense counsel’s performance] fell far short of reasonable competence,” and was deficient under Strickland because he did not put forth reasonable effort to investigate the defendant’s alibi.Id. This deficiency was prejudicial, the Court concluded, because had the defense counsel properly investigated and interviewed the witness, he would have been able to corroborate the defendant’s story, thus establishing a complete alibi defense to the charges.Id. at 193. The Court ultimately reversed the lower court and set aside the conviction.Id. at 193.