Update. A commenter notes.
There is another, albeit more subtle, takeaway from Miner. It is a dual blast arising in Gideon and Strickland, to the defense leadership of all of the Services Defense Counsel functions. With actual trials in courts-martial going the way of the dodo bird, experienced counsel (with supervisory responsibilities) have likewise significantly declined.
In Miner, the court finds IAC and in the process names one of the DC (the more experienced one).
Appellant was represented by two captains assigned to Trial Defense Service (TDS) at Fort Polk, Louisiana. The Senior Defense Counsel, Captain (CPT) Delta, detailed himself to the case but subsequently detailed a subordinate junior defense counsel as appellant's first chair attorney. This was the first trial the subordinate defense counsel had served as a first chair attorney and only the second trial in which the subordinate attorney had any responsibilities. Leading up to the trial, the attorneys worked as a team, although CPT Delta took a greater role in preparing for the pre-sentencing proceedings, while the subordinate defense counsel focused on the merits phase of appellant's court-martial, under CPT Delta's
Having laid out the law of IAC, ACCA gets to the nub of the issue which, as we know, often comes down to prejudice.
The hard question before this Court is not whether appellant's counsel were ineffective in several areas (they were); but rather to assess the level to which their failures prejudiced their client. In order to analyze what, if any, prejudice occurred in this case, we will first discuss the three witnesses the defense presented and we will next turn to the possible exculpatory defense witnesses that were not presented as contrasted against the government evidence.
Query: is the court implying the Government or investigators knew but there is an underlying Brady-Plus issue? Anyway,
It appears the defense (and I suppose investigators) never interviewed Appellant's next door neighbor and the one across the hall. At the Dubay
Specialist DW described the layout and acoustics of the rooms, stating he could generally hear "everything" in appellant's space, to include appellant brushing his teeth and cooking meals. Specialist DW was present in his room on the night of the alleged assault and was awake until approximately 0400 because he suffered from untreated insomnia.
While there are lessons here for DCs, I think too TCs can learn something. This comes from two questions: why did CID not interview the neighbors or why did not the TC arrange for CID to interview them? It seems obvious that the neighbors should have been interviewed. That seems a relevant investigative step--looking for witnesses who may have seen or heard something. True, canvassing interviews do not always produce useful information, but as the Dubay hearing here showed and as ACCA discusses, the neighbors did have relevant testimony. As a trial counsel I would want to know that.
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