***United States v. Marshall*:**

**Ineffective Assistance of Pretrial Counsel**

[Major Richard D. Desmond, USAF]{.smallcaps}[^1]

**I. OVERVIEW**

The Sixth Amendment of the U.S. Constitution guarantees every accused
the right to the effective assistance of counsel.[^2] But does this
right extend to the pretrial stage, where critical decisions such as
whether to accept or reject a plea bargain can expose an accused to
greater peril at trial?[^3] In the military, the decision to accept an
offer of nonjudicial punishment[^4] or to demand trial by court-martial
can carry even graver consequences. Does a subsequent fair trial remedy
any prejudice the accused may have suffered as the result of an
ill-advised election?

In *United States v. Marshall,*[^5] the United States Court of Appeals
for the Armed Forces (CAAF) grappled with this very issue. It examined a
case where the commander's offer of nonjudicial punishment proceedings
remained open until the first day of trial. Technical Sergeant (TSgt)
Larry Marshall asserted that in making the decision to reject an Article
15 and proceed to trial by court-martial, he had been denied his right
to the effective assistance of counsel.[^6]

This article examines the *Marshall* opinion and analyzes state and
federal court decisions on the issue of pretrial effective assistance of
counsel. Based on this study, it offers counsel practical guidance to
avoid the likelihood of such a claim or of its success.

**II**. ***UNITED STATES V. MARSHALL***

##### Synopsis

On 28 February and 1 March 1991, TSgt Larry Marshall was tried by a
special court-martial at Travis Air Force Base, California. Contrary to
his pleas, he was found guilty of disobeying a lawful order to provide a
specimen for a blood alcohol test, driving under the influence of
alcohol, and being drunk and disorderly in violation of Articles 92,
111, and 134, Uniform Code of Military Justice (UCMJ), respectively.[^7]
He was sentenced to a bad conduct discharge and reduction to the pay
grade of E-1.

Technical Sergeant Marshall appealed his conviction to the Air Force
Court of Military Review.[^8] He asserted that his civilian defense
counsel was ineffective. On 23 September 1992, the Air Force court
rejected this assertion and affirmed the findings and sentence in an
unpublished decision.[^9]

Technical Sergeant Marshall then sought review in the United States
Court of Military Appeals[^10] on the basis he was denied effective
assistance of counsel. In an order dated 9 March 1994, that court set
aside the decision of the Air Force court and ordered a fact-finding
hearing pursuant to *United States v. DuBay*,[^11] "solely for the
purpose of determining the advice given as to the matter raised" in
Technical Sergeant Marshall's affidavits and the "tactical and legal
considerations on which the advice was based."[^12]

A *DuBay* hearing was held at Travis Air Force Base on 19 and 26 May
1994. After further review in light of the *DuBay* hearing and the
findings of fact, the Air Force Court of Criminal Appeals reaffirmed its
earlier decision that Technical Sergeant Marshall was not denied
effective assistance of counsel.[^13]

On 17 July 1995, the CAAF granted review of the issue of whether
Technical Sergeant Marshall was denied effective assistance of counsel
when he turned down an Article 15 after his civilian defense counsel
provided incorrect and untenable advice concerning the outcome of going
to trial.

**B. Facts**

On 18 December 1990, Technical Sergeant Larry Marshall met with Mr. B, a
civilian attorney who practiced military law in Fairfield, California.
Technical Sergeant Marshall had received two "referral" Enlisted
Performance Reports (EPRs)[^14] from his former duty station in
Korea.[^15] Technical Sergeant Marshall sought Mr.. B\'s advice in
appealing the EPRs and having them removed from his records. At this
first meeting, Technical Sergeant Marshall provided Mr. B with a copy of
a previously submitted unsuccessful appeal which included copies of the
EPRs and may have included copies of an Unfavorable Information File
entry and a control roster action.[^16] Marshall was very concerned that
his career was in jeopardy and his intent was to salvage his
career.[^17]

Mr. B advised Technical Sergeant Marshall that the process of appealing
the EPRs could be lengthy, and they would first have to exhaust
administrative remedies and then apply to the Air Force Board for
Corrections of Military Records.[^18] Mr. B discussed his fee with
Technical Sergeant Marshall, however, Marshall did not retain Mr. B on
this occasion.[^19]

On 22 December 1990, Technical Sergeant Marshall was apprehended at the
gate of Travis Air Force Base for driving while intoxicated.[^20] On 3
January 1991, Marshall was offered an Article 15 for wrongfully driving
on a suspended license, and drunk and disorderly conduct.[^21] At the
time of the incident, Technical Sergeant Marshall had 17 and one-half
years of active duty with no prior nonjudicial punishments.[^22]

On or about 7 January 1991, Technical Sergeant Marshall met with Mr. B.
In later testimony at the *DuBay* hearing, Mr. B could not remember
whether Technical Sergeant Marshall had been offered the Article 15 or
had merely been advised that it would be offered.[^23] Although
Technical Sergeant Marshall admitted to Mr. B that he had been drunk and
disorderly, his license had not yet been suspended. Mr. B assumed an
administrative discharge would be an inevitable result of a decision to
accept the Article 15.[^24] At the *DuBay* hearing, Mr. B could not
recall the basis for this conclusion, other than he believed that the
accused had been told this by the commander, or the accused made the
assumption that an administrative discharge was inevitable.[^25] Mr. B
did not attempt to verify whether Technical Sergeant Marshall\'s
commander or anyone at the Travis Air Force Base legal office was
contemplating an administrative discharge.[^26] In Mr. B\'s opinion,
Technical Sergeant Marshall had two alternatives, neither of which were
attractive. If Technical Sergeant Marshall accepted the Article 15, he
would then face an administrative discharge board. If he turned down the
Article 15, he would be court-martialed.[^27] In Mr. B\'s opinion,
Technical Sergeant Marshall had a better chance of saving his career in
a court-martial than in an administrative discharge board. Mr. B based
this evaluation in part upon the differing burdens of proof in boards
and courts.[^28] In a board, the burden of proof would be by a
preponderance of the evidence. Additionally, the members would be
looking at Technical Sergeant Marshall's entire record, including both
his on-duty performance and off-duty conduct.[^29] Given the two
referral EPRS, Mr. B was of the opinion that Marshall stood a better
chance in a court-martial.[^30] He also felt that members are sometimes
reluctant to adjudge a bad conduct discharge in a court-martial.[^31]
Marshall did not retain Mr. B at this time.

On 14 January 1991, the initial Article 15 was withdrawn, and a second
Article 15 was offered.[^32] The second Article 15 contained four
specifications: dereliction of duty for driving with a suspended
license, driving while intoxicated, disorderly conduct, and failure to
obey an order to submit to a blood alcohol test.[^33]

On 15 January 1991, Technical Sergeant Marshall went to the office of
the Area Defense Counsel, Captain T, to seek advice on this second
Article 15. Captain T advised Marshall of his rights relating to the
Article 15.[^34] He explained Marshall's options of accepting the
Article 15, or turning it down and demanding trial by court-martial.
Technical Sergeant Marshall was concerned that by accepting the Article
15 he would be admitting guilt. He wanted to respond to the suspended
license allegation. Captain T informed Marshall that accepting the
Article 15 was not an admission of guilt, and he could submit a
statement to his commander regarding the offenses.[^35] Technical
Sergeant Marshall made another appointment to see Captain T the next
day, 16 January 1991, but later canceled that appointment.[^36]
Technical Sergeant Marshall was wary of Captain T, seeing him as a
government attorney.[^37]

Technical Sergeant Marshall went back to see Mr. B on 16 January 1991.
According to Technical Sergeant Marshall, Mr. B advised him to turn down
the Article 15 and demand a trial by court-­martial.[^38] According to
Technical Sergeant Marshall, Mr. B told Marshall he would be admitting
his guilt by accepting the Article 15.[^39] Based on his *DuBay* hearing
testimony, it is not clear what advice Mr. B gave Technical Sergeant
Marshall as to the effect of accepting the Article 15. During his
testimony, Mr. B indicated that he discussed the meaning of accepting
the Article 15 with Technical Sergeant Marshall.[^40] According to Mr.
B\'s testimony, he indicated that if Technical Sergeant Marshall
accepted an Article 15, that would not be admitting guilt and that the
Article 15 was nonjudicial.[^41] Nevertheless, post-trial submissions by
Mr. B indicated he believed it would be inappropriate to accept an
Article 15 if one of the specifications were groundless and equated the
Article 15 process to a *Care*[^42] inquiry. In other words, Mr. B
indicated in his post-trial submissions that he could not let Technical
Sergeant Marshall plead guilty to an offense he did not commit.[^43]

Apparently, Mr. B thought an administrative discharge was a foregone
conclusion if Marshall accepted the Article 15.[^44] However, Mr. B
never tried to verify that a discharge was contemplated, or an
inevitable consequence of accepting the Article 15.[^45] In fact, an
affidavit from the assistant trial counsel was submitted at the *DuBay*
hearing. Assistant trial counsel noted that Mr. B never contacted him
regarding the likelihood of an administrative discharge should Technical
Sergeant Marshall accept the Article 15. Further, to assistant trial
counsel's knowledge, no one on the government's side was pushing an
administrative discharge action, although it had not been ruled
out.[^46] Although Mr. B denied making any promises to Marshall,[^47]
Technical Sergeant Marshall stated in his post-trial affidavits that Mr.
B had advised him that he would not receive a bad conduct discharge at
the court-martial, despite the fact that he would be convicted of some
of the charges.[^48] Based upon Mr. B\'s advice, Technical Sergeant
Marshall turned down the Article 15 and demanded trial by
court-martial.[^49]

On 8 February 1991, charges were referred to a special court-martial.
Additional charges of failing to obey lawful orders were referred on 15
February 1991.[^50] Trial was scheduled for 28 February 1991.

On 12 February 1991, Mr. B, Captain T and Technical Sergeant Marshall
met to discuss Marshall\'s decision to refuse the Article 15 and the
subsequent court-martial. Captain T continued to recommend acceptance of
the Article 15 and pointed out the folly of risking a bad conduct
discharge at a court-martial.[^51] Mr. B told Captain T that his
compensation package included representation at an administrative
discharge board after the court-martial, because he told Technical
Sergeant Marshall it was unlikely that Marshall would receive a punitive
discharge from the court-martial.[^52]

A second meeting occurred among the three parties on 27 February 1991,
the day before trial. Captain T informed Technical Sergeant Marshall and
Mr. B the Article 15 was still being offered by the convening authority,
and Marshall could still accept it and avoid the court-martial.[^53] At
this point, Mr. B interrupted Captain T, instructed Captain T that his
role was limited solely to procedural questions, and stated "we\'re
going with the court-martial," and "I\'m the expert here."[^54] Mr. B
told Technical Sergeant Marshall to turn down the Article 15 and
acknowledged that Marshall would be convicted of at least some of the
charges.[^55]

During the court-martial, Mr. B handled Technical Sergeant Marshall\'s
case. Technical Sergeant Marshall was convicted on three charges and was
sentenced to a bad conduct discharge and reduction to E-1.[^56]

### C. Issues

On appeal of his conviction, Technical Sergeant Marshall alleged
ineffective assistance of counsel. Specifically, Technical Sergeant
Marshall alleged that Mr. B: 1) gave him "flat out wrong advice" that
accepting the Article 15 would be an admission of guilt;[^57] 2) told
Technical Sergeant Marshall that he would not receive a bad conduct
discharge from the court-martial members;[^58] 3) interfered with
military defense counsel's attempts to dissuade Technical Sergeant
Marshall from proceeding to court-martial;[^59] and 4) Mr. B's
"tactical" decision to proceed to a court-martial in lieu of an Article
15 was unreasonable.[^60]

### D. Holding

The Court found that Technical Sergeant Marshall received conflicting
advice from his civilian attorney and military defense counsel, and an
obvious tension existed between them. Nonetheless, viewed in its
entirety, Technical Sergeant Marshall was presented with legal advice
concerning his options and the practical ramifications of those
available options.[^61]

### E. Rationale

In *Strickland v. Washington,*[^62] the U.S. Supreme Court set forth the
standard for measuring a claim of ineffective assistance of counsel. In
order for an accused to prevail, he must establish the following:

> First, the defendant must show that counsel's performance was
> deficient. This requires showing that counsel made errors so serious
> that counsel was not functioning as the "counsel" guaranteed the
> defendant by the Sixth Amendment. Second, the defendant must show that
> the deficient performance prejudiced the defense. This requires
> showing that counsel's errors were so serious as to deprive the
> defendant of a fair trial, whose result is reliable.[^63]

The basis of the *Strickland* standard is to ensure that criminal
defendants receive a fair trial.

The Court of Appeals for the Armed Forces applied *Strickland's*
two-prong test that requires the defendant to demonstrate: (1) his
counsel's performance was deficient, and (2) the deficient performance
prejudiced his defense. As stated by the *Marshall* opinion's author,
Judge Sullivan, "in order to constitute ineffective assistance,
counsel's errors must be so serious as to deprive the defendant of a
fair trial, 'a trial whose result is reliable.'" [^64]

At the outset, the court noted that proceedings under Article 15 do not
trigger the Sixth Amendment right to counsel.[^65] However, the Court of
Appeals for the Armed Forces "assumed" the Sixth Amendment and its
standard for effective counsel applied to Technical Sergeant Marshall's
case where the offer to accept nonjudicial punishment in lieu of trial
by court-martial remained open until the first day of trial.[^66]
Further, the court presumed the competence of Mr. B,[^67] noting
"strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable."[^68]

Addressing Marshall's first allegation of ineffectiveness, the Court
noted, during the *DuBay* hearing, Mr. B denied giving advice to
Marshall that acceptance of an Article 15 punishment was an admission of
guilt.[^69] Further, the court pointed out, while both Mr. B and Captain
T differed on the probable course of action by Technical Sergeant
Marshall's command, neither disputed that an administrative discharge
action was legally possible on the basis of nonjudicial punishment.[^70]
Thus, even if Mr. B's complained-of advice was defective, it was not
prejudicial to Technical Sergeant Marshall.[^71]

The court then focused on Marshall's second allegation, that Mr. B told
Marshall he would not receive a bad conduct discharge from court-martial
members. The court held that an erroneous sentence estimation by defense
counsel is not necessarily deficient performance rising to the level of
ineffective assistance of counsel.[^72] Moreover, civilian counsel
advised Technical Sergeant Marshall, even if he did not receive a bad
conduct discharge, there still might be an administrative discharge
board following the court-martial.[^73]

Interestingly, the court did not directly address Technical Sergeant
Marshall's complaint that his civilian defense counsel interfered with
his military defense counsel's efforts to dissuade Technical Sergeant
Marshall from proceeding to a court-martial. The court simply concluded,
"in advising appellant, counsel's performance did not fall 'measurably
below the performance \[ordinarily expected\] of fallible lawyers."[^74]

As for the final allegation, "untenable tactical reasons for proceeding
to court," the court examined the end result of Marshall's
court-martial.[^75] After evaluating the entire record of trial, the
court concluded that civilian defense counsel did provide effective
legal assistance to Technical Sergeant Marshall.[^76] The court observed
civilian defense counsel submitted a clemency submission that led to a
recommendation by the staff judge advocate to the convening authority to
approve only a reduction to the grade of E-5 and to suspend the bad
conduct discharge.[^77] Prior to the clemency decision, however,
Technical Sergeant Marshall committed additional acts of misconduct that
resulted in the preparation of a new staff judge advocate recommendation
and eventual approval of the bad conduct discharge adjudged by the
court-martial.[^78]

# **SIGNIFICANCE OF *MARSHALL***

The most important aspect of the *Marshall* decision was the CAAF's
recognition that a claim of ineffective assistance of counsel could
exist when a defendant demonstrates that ineffective representation
prior to court-martial caused him or her to proceed to trial rather than
accept a more lenient offer from the government, such as a pretrial
agreement or an Article 15.

Practitioners should be careful not to read the *Marshall* decision too
broadly. Ordinarily, no Sixth Amendment claim to effective assistance of
counsel attaches to nonjudicial punishment proceedings.[^79] The
*Marshall* court took great pains to point out that the Article 15
offered to Technical Sergeant Marshall remained open until the day of
his court-martial, *after* Technical Sergeant Marshall's right to
effective counsel had been triggered by the preferral of charges.[^80]

On the other hand, practitioners should also be aware that the
*Marshall* decision contrasts sharply with the decisions of state and
federal appellate courts on the issue of ineffective pretrial counsel.
While the *Marshall* court stringently applied *Strickland's* two-prong
test, civilian appellate courts have applied a modified *Strickland*
test. Rather than ensuring the defendant received a fair trial, which
the CAAF did by noting the ultimate outcome in *Marshall*[^81], state
and federal courts focus on counsel's particular duties to consult with
the defendant on important decisions and keeping the defendant informed
of important developments in the course of the prosecution.

# **STATE AND FEDERAL CASES**

The rejection of the offer to accept the Article 15 in lieu of trial in
*Marshall* is arguably no different than those situations in civilian
state and federal cases involving offers of pretrial agreements or plea
bargains where the accused relies on counsel\'s advice, rejects an
offer, is convicted and receives a less favorable sentence.

For example, in *Lloyd v. State*,[^82] the Georgia Supreme Court
addressed the issue of ineffective assistance of counsel where defense
counsel failed to communicate a plea offer to his client. The defendant
in *Lloyd*, who had been convicted of murder, contended on appeal that
she had been denied effective assistance of counsel. She alleged her
attorney failed to communicate to her a pretrial plea bargain offer to
plead guilty to voluntary manslaughter. Counsel admitted having failed
to communicate the offer, and explained his action was based upon his
strong belief that his client ultimately would be acquitted.[^83] He
implied that had he communicated the offer, he would have recommended
that his client reject it.[^84] The failure to communicate the offer of
a prosecutor for the defendant's consideration, according to the Georgia
Supreme Court, fell below the standard of care expected in the legal
profession.[^85]

In fashioning a remedy for Lloyd, the court properly recognized that a
fair trial could not remedy the specific deprivation suffered.[^86]
Applying a modified *Strickland* test, the *Lloyd* court did not focus
on whether the defendant received a fair trial, but whether the
defendant could show that "but for counsel's unprofessional errors, the
result of the proceeding would have been different."[^87] Logically, in
a case of ineffective assistance of pretrial counsel based upon failing
to communicate a plea offer, such prejudice can only be shown by some
indication that the defendant was amenable to the offer made by the
government.[^88] The court affirmed Lloyd's conviction, concluding that
counsel's failure to communicate the offer constituted deficient
representation, but the evidence failed to establish that the defendant
would have accepted (or even considered) it.[^89] The defendant,
therefore, failed to establish prejudice.

In *Turner v. State of Tennessee*,[^90] the defendant was charged with
felony murder and kidnapping. On advice of counsel, he rejected an offer
to plead guilty in exchange for a two-year sentence.[^91] He was
convicted and sentenced to imprisonment for life plus forty years.[^92]
The defendant petitioned the federal court for a writ of habeas corpus,
seeking reinstatement of the offered plea bargain. The district court
granted a conditional writ, holding that counsel's advice to reject the
offer was incompetent, and that the defendant was prejudiced by it. The
Sixth Circuit Court of Appeals affirmed the district court's decision.
The court noted that defendant's testimony that he would have accepted
the offer had his counsel advised him of it the offer, was subjective,
self-serving, and, by itself, insufficient to satisfy the *Strickland*
test for prejudice.[^93] However, unlike the court in *Lloyd*, the
*Turner* court found that objective evidence in the record corroborated
the defendant's claim.[^94] Therefore, there was a reasonable
probability that, had counsel provided effective representation, the
defendant would have accepted the offer. The state, however, was allowed
to withdraw the plea[^95] offer pursuant to *United States v.
Morrison*,[^96] upon showing that the withdrawal was not the product of
prosecutorial vindictiveness.

In *In re Alvernaz,*[^97] the California Supreme Court addressed the
issue of a rejected plea bargain prior to trial, and whether a defendant
may challenge a subsequent conviction and sentence on the ground of
ineffective assistance of counsel in the decision to reject the offered
plea bargain. In *Alvernaz*, the court concluded that when a defendant
demonstrates that ineffective pretrial representation caused him or her
to proceed to trial rather than to accept a plea bargain, the defendant
has been deprived of the effective assistance of counsel, even if the
defendant thereafter receives a fair trial.[^98] A five-count
information was filed against petitioner in *Alvernaz* alleging offenses
committed against three Mexican farm workers. Petitioner alleged that
after a pretrial plea bargaining session, his attorney advised him the
prosecution had offered to permit petitioner to plead guilty to one
count of robbery.[^99] The plea offer would only carry a maximum penalty
of two and one-half years of confinement.[^100] When petitioner
questioned his attorney about the consequences of not prevailing at
trial, his attorney told him the maximum penalty would be approximately
eight years in prison and, with deduction of credits, a maximum sentence
of approximately four years.[^101] Petitioner also alleged he was
encouraged by his attorney's prediction of a "70-80%"[^102] chance of
prevailing should he go to trial. Had he known that losing the case
would actually subject him to a life sentence with prison confinement in
excess of 16 years, he would have accepted the prosecutor's one-count
offer.[^103]

The California Supreme Court held that a defendant is deprived of his
federal constitutional rights to effective assistance of counsel when
his lawyer gives him substandard advice that induces him to reject a
plea offer.[^104] Even a fair trial following rejection does not
adequately cure the error, and the remedy should be resubmission of the
plea bargain.[^105]

In summarizing the case law in this area,[^106] the California Supreme
Court in *Alvernaz* concluded that: "\[A\]ll federal and state courts
presented with the issue where counsel\'s ineffective representation
results in defendant\'s rejection of an offered plea bargain, and in
defendant\'s decision to proceed to trial, give rise to a claim of
ineffective assistance of counsel."[^107]

The modified approach applied by state and federal courts is to evaluate
the three following areas. First, did defense counsel actually and
accurately communicate the offer to the defendant? Second, what advice,
if any, was given by counsel, and what was the disparity between the
terms of the proposed plea bargain and the probable consequences of
trial, as viewed at the time of the offer. Finally, did the defendant
indicate he or she was amenable to negotiating a plea bargain?[^108]

The *Alvernaz* court stated that limiting the *Strickland* prongs only
to performance and prejudice at trial, and not pretrial matters, was an
"overly narrow reading of *Strickland\'s* delineation of the functions
of counsel . . . \[and\] . . . the position that a fair trial remedies
the ineffective assistance which led the defendant to reject an offered
plea bargain disregards petitioner\'s specific complaint of
constitu­tional injury."[^109]

Nonetheless, the court concluded, on the basis of the record before it,
that Alvernaz failed to sustain his burden of establishing that he would
have accepted the offered plea bargain, had he received constitutionally
adequate assistance from counsel.[^110]

Alvernaz subsequently filed a writ of habeas corpus with the United
States District Court of the Southern District of California.[^111]
Granting the writ, the federal district court determined that an
evidentiary hearing was mandatory on the issue of whether or not
Alvernaz would have accepted the plea bargain.[^112] Similar to the
California Supreme court, the federal district court applied a modified
*Strickland* standard. Contrary to the California Supreme Court, the
federal district court found that Alvernaz was prejudiced by his
counsel's ineffectiveness.[^113]

The federal district court in *Alvernaz* adopted the view of the
California Supreme Court that, where counsel's ineffective
representation results in a defendant's rejection of an offered plea
bargain and in defendant's decision to proceed to trial, the first prong
of *Strickland* was satisfied under the facts of the case.[^114] The
second prong of *Strickland* (a showing of prejudice) was satisfied by a
preponderance of evidence that there was a reasonable probability that,
had Alvernaz known the true sentencing ramifications of losing at trial,
he would have accepted the plea offer.[^115]

According to the federal district court, the following objective
evidence from the evidentiary hearing supported Alvernaz's claim: (1)
Alvernaz's assertions that he would've accepted the offer had he
received competent advice; (2) the testimony of Alvernaz's attorney who
speculated that, had he advised Alvernaz correctly, Alvernaz would have
accepted the plea; (3) the testimony of Alvernaz's family members which
supported Alvernaz's claim; (4) Alvernaz was rational and followed the
advice of his counsel; (5)Alvernaz based his decision to go to trial on
incorrect risk factors; and (6) Alvernaz was open to a plea
bargain.[^116] Additionally, the federal district court examined the
general trend of plea practice in the California state courts, and
relied upon the opinions of the state judges who ruled on the state
habeas petition, in finding a reasonable probability that the trial
court would have accepted the plea offered to Alvernaz.[^117]

In fashioning a remedy for Alvernaz, it was the federal district court's
opinion that a new trial could not cure the specific deprivation
suffered.[^118] The court noted that since the harm was suffered before
trial, they believed a new trial would not suffice.[^119] Instead, the
federal district court ruled that the appropriate remedy was the
reinstatement of the lost plea bargain.[^120]

## **V. CONCLUSION**

Every accused has a constitutional right to participate in making
certain decisions that are fundamental to his or her defense, including
whether to plead guilty, waive a jury, testify in his or her own behalf,
or appeal.[^121] The crucial decision to reject a lenient government
offer and proceed to trial should not be made by a defendant encumbered
"with a grave misconception as to the very nature of the proceeding and
possible consequences."[^122] The rendering of ineffective assistance of
counsel, resulting in a defendant's decision to reject an offered plea
bargain and proceed to trial, constitutes a constitutional violation
which is not remedied by a fair trial.

Military practitioners should be aware that the Sixth Amendment right to
effective counsel attaches after preferral of charges.[^123] While the
CAAF was willing to recognize a claim of ineffective assistance of
pretrial counsel,[^124] the court stringently applied the *Strickland*
standard and ultimately focused on whether the defendant was deprived of
a fair trial. State and federal courts, however, have applied a modified
*Strickland* test that focuses on the decision whether to accept a plea
offer or proceed to trial.

To discourage ineffective assistance of pretrial counsel claims, defense
counsel are encouraged to memorialize in some fashion prior to trial:
(1) the fact that a plea bargain offer was made, regardless of the
terms; (2) the accused was advised of the offer, its precise terms, and
the maximum and minimum punishments the defendant would face if the plea
bargain was accepted or, alternatively, if it was rejected and the case
proceeded to trial; and (3) the accused's response to the plea bargain
offer. By taking such actions, and by memorializing them in writing,
defense counsel should be able to show that their actions during the
pretrial stage were within the standards established in the Constitution
and should be able to overcome subsequent claims of ineffectiveness.

[^1]: ^\*^ *Major Desmond (B.S., Northeastern University; J.D., Loyola
    University School of Law) is an Assistant Professor of Law, United
    States Air Force Academy, Colorado. He is a member of the Illinois
    Bar.*

[^2]: *See* Strickland v. Washington, 466 U.S. 668, 684 (1984)

[^3]: Some commentators have argued that *Strickland's* inquiry into
    effectiveness of counsel after the fact is unfair since "the
    publicly-funded lawyers who represent most criminal defendants are
    overworked, underpaid, and all to often either inexperienced or
    burnt out." Donald A. Dripps, *Ineffective Assistance of Counsel:
    The Case For An* Ex Ante *Parity Standard*, [88 J. Crim. L. &
    Criminology]{.smallcaps} 242, 243 (1997).

[^4]: Punishment under Article 15 of the Uniform Code of Military
    Justice (UCMJ) 10 U.S.C.A. § 815 (West 1983 & Supp. 1997): It
    authorizes a commanding officer to impose nonjudicial punishment
    upon members of his or her command. Proceedings are not criminal
    prosecutions. *See* United States v. Kendig, 36 M.J. 291 (C.M.A.
    1993). Moreover, punishments under this codal provision are
    generally less severe than can be awarded by a court-martial. *See*
    [Manual for Courts-Martial]{.smallcaps}, United States,
    \[hereinafter Manual\], Part V, para. 5, (1995 ed.).

[^5]: United States v. Marshall, 45 M.J. 268 (1996).

[^6]: *Id* at 270.

[^7]: 10 U.S.C.A. §§ 892, 911, and 934 (West 1983 & Supp. 1995).
    Appellant initially faced three Charges, violations of Articles 92,
    111, and 134, UCMJ, respectively. Charge I, violation of Article 92,
    UCMJ, was withdrawn by the convening authority before arraignment.
    Charge II, violation of Article 111, UCMJ, and Charge III, violation
    of Article 134, UCMJ, were then renumbered as Charge I and Charge II
    respectively.

[^8]: Effective October 5, 1994, pursuant to Pub. L. No. 103-337 § 924,
    108 Stat. 2663, the United States Court Of Military Appeals was
    renamed the United States Court of Appeals for the Armed Forces and
    each Court of Military Review was renamed the Court of Criminal
    Appeals.

[^9]: United States v. Marshall, ACM S29406 (A.F.C.M.R. 23 September
    1992).

[^10]: *See supra* note 7.

[^11]: United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).

[^12]: Marshall, 45 M.J. at 269.

[^13]: United States v. Marshall, ACM S29406 (f rev) ( A.F.Ct .Crim.App.
    8 February 1995).

[^14]: Negative ratings or comments on EPRs can be devastating to an
    enlisted member's career. Therefore, administrative procedures have
    been established to refute and correct perceived unfair reports.
    *See* Air Force Instruction 36-2401, Correcting Officer and Enlisted
    Evaluation Reports (3 June 1994).

[^15]: *Marshall*, 45 M.J. at 270.

[^16]: *Id*. Control rosters are governed by Air Force Instruction
    36-2907, Unfavorable Information File (UIF) Program ¶2.1 (July 1
    1996) \[hereinafter AFI 36-2907\]. They allow the commander a formal
    method of listing officers and airmen whose conduct or performance
    require special observation. A UIF is a formal repository for
    unfavorable information of an individual's conduct, bearing,
    behavior and integrity, both on and off duty. UIFs are also governed
    by AFI 36-2907.

[^17]: *Marshall*, 45 M.J. at 270.

[^18]: Record of *DuBay* hearing, pp. 13-14. The Air Force Board for
    Correction of Military Records was established by congressional
    statute for the purpose of correcting errors or injustices in
    military records. Application procedures to the Board are governed
    by Air Force Instruction 36-2603, Air Force Board For Corrections Of
    Military Records ¶ 3 (March 1 1996).

[^19]: Record of *DuBay* hearing, p. 14.

[^20]: *Marshall*, 45 M.J. at 270.

[^21]: *Id*.

[^22]: Record of *DuBay* hearing, pp. 15-16.

[^23]: *Id* at 42.

[^24]: *Id* at 44-45.

[^25]: *Id.*

[^26]: *Id* at 46.

[^27]: *Marshall*, 45 M.J. at 272.

[^28]: *Id*.

[^29]: Record of *DuBay* hearing, p.56.

[^30]: *Marshall*, 45 M.J. at 272.

[^31]: *Id.*

[^32]: Record of *DuBay* hearing, pp. 48-49.

[^33]: *Id*.

[^34]: *Marshall*, 45 M.J. at 270.

[^35]: See Record of *DuBay* hearing, Appellate Exhibit XVM: Captain T's
    Affidavit dated 12 August 1992.

[^36]: *Id*.

[^37]: *Id.,* App. Ex. XX; Appellant\'s Affidavit dated 22 July 1992.

[^38]: *Marshall*, 45 M.J. at 270.

[^39]: *Id.* at 272.

[^40]: *Id*.

[^41]: *Id.*

[^42]: United States v. Care, 40 C.M.R. 247 (1969). The record of trial
    in guilty plea cases must demonstrate that the elements of each
    offense charged had been explained to the accused, and also that the
    military judge inquired into the accused's intent for the offenses
    charged. This is to make clear the basis for a determination by the
    military judge whether the acts or omissions of the accused
    constituted the offense to which he is pleading guilty.

[^43]: *See* Original Record of Trial for United States v. Marshall,
    Allied Papers: Response to SJA's Post Trial Recommendation, p. 3,
    Vol. I.

[^44]: *Marshall*, 45 M.J. at 273.

[^45]: Record of *DuBay* hearing, pp. 15-16, and Appellate Exhibits XXV
    and XXVI.

[^46]: Record of *DuBay* hearing, Appellate Exhibit XXV.

[^47]: *Marshall*, 45 M.J. at 272.

[^48]: *Id.*

[^49]: *Id.* at 270.

[^50]: *See supra* note 6*.*

[^51]: Record of *DuBay* hearing, Appellate Exhibit XVII: Captain T's
    affidavit dated 24 Oct 1991.

[^52]: *Id.*

[^53]: *Id.*

[^54]: *Id*.

[^55]: *Id.*

[^56]: *Marshall*, 45 M.J. at 269.

[^57]: *Id.* at 272.

[^58]: *Id.*

[^59]: *Id.* at 270.

[^60]: *Id.*

[^61]: *Id.* at 273.

[^62]: Strickland v. Washington, 466 U.S. 668 (1984).

[^63]: *Id.* at 687.

[^64]: *Marshall*, 45 M.J. at 270 (quoting Strickland v. Washington, 466
    U.S. 668, 687 (1984))

[^65]: *Id*. at 271. Article 15 does not expressly require that a lawyer
    be made available to a service member before deciding to elect
    nonjudicial punishment or demand trial by court-martial. Neither
    does Manual, *supra* note 3, Part V, expressly require counsel.
    Nevertheless, under Air Force Instruction 51-202, Nonjudicial
    Punishment ¶ 4.7.1 (October 1 1996), a service member has a right to
    a military lawyer to explain to the service member his or her rights
    under Article 15. *See also* United States v. Mack, 9 M.J. 300,
    320-21 (C.M.A. 1980).

[^66]: *Id.* at 271. In Technical Sergeant Marshall's case, preferral of
    charges occurred after he decided to forgo nonjudicial punishment
    and demanded trial by court-martial. Since adversary proceedings had
    been initiated against him at the time of the averred
    ineffectiveness of his counsel, a Sixth Amendment claim arose. *See*
    United States v. Kendig, 36 M.J. 291, 296 (C.M.A. 1993).

[^67]: *Strickland*, 466 U.S. at 689.

[^68]: *Id*. at 690.

[^69]: The court failed to address the difference between Mr. B's
    *DuBay* testimony and his post-trial submissions to the convening
    authority, in which he explained that Technical Sergeant Marshall
    couldn't have accepted the Article 15, because the acceptance was
    tantamount to a guilty plea.

[^70]: *Marshall*, 45 M.J. at 272.

[^71]: *Id*.

[^72]: *Id.* at 273 (citing United States v. Gordon, 4 F.3d 1567, 1570
    (10^th^ Cir. 1993).

[^73]: *Id.*

[^74]: *Id.*

[^75]: *Id.*

[^76]: *Id.*

[^77]: *Id*.

[^78]: *Id.*

[^79]: *See* *supra* note 62.

[^80]: *Marshall*, 45 M.J. at 271.

[^81]: *Id* at 273.

[^82]: Lloyd v. State, 373 S.E.2d 1 (1988).

[^83]: *Id*. at 1.

[^84]: *Id.* at 2 n.3.

[^85]: *Id.* at 3.

[^86]: *Id.* at 2 n.4.

[^87]: *Id.* at 3 (citing *Strickland*, 466 U.S. at 694).

[^88]: *Id.*

[^89]: *Id.* at 4.

[^90]: Turner v. State of Tennessee, 858 F.2d 1201 (6th Cir. Tenn.
    1988), *vacated and remanded* 492 U.S. 902 (1989).

[^91]: *Turner,* 858 F.2d at 1203.

[^92]: *Id.*

[^93]: *Id.* at 1206.

[^94]: *Id.* at 1206-07.

[^95]: Turner v. Tennessee, 726 F.Supp. 1113 (M.D. Tenn. 1989).

[^96]: United States v. Morrison, 449 U.S. 361 (1981).

[^97]: In re Alvernaz, 830 P.2d 747 (1992), *writ of habeas corpus
    granted*, Alvernaz v. Ratelle, 831 F. Supp. 790 (S.D.Cal. 1993).

[^98]: *Id.* at 751.

[^99]: *Id*. at 752.

[^100]: *Id.*

[^101]: *Id.* at 753.

[^102]: *Id.*

[^103]: *Id.* at 754.

[^104]: *Id.* at 757.

[^105]: *Id.* at 965.

[^106]: *See, e.g.,* Lewandowski v. Makel, 949 F.2d 884 (6th Cir. 1991);
    United States v. Rodriguez, 929 F.2d 747 (1st Cir 1991); Johnson v.
    Duckworth, 793 F.2d 898 (7th Cir. 1986); State v. Simmons, 309
    S.E.2d 493 (N.C. App. 1983).

[^107]: *Alvernaz*, 830 P.2d at 757-58 n.5.

[^108]: *Id.* at 761.

[^109]: *Id.* at 758.

[^110]: *Id.* at 752.

[^111]: Alvernaz v. Ratelle, 831 F. Supp. 790 (S.D. Cal. 1993).

[^112]: *Id* at 791.

[^113]: *Id* at 792-93.

[^114]: *Id* at 792.

[^115]: *Id* at 793.

[^116]: *Id* at 793-95.

[^117]: *Id* at 796.

[^118]: *Id* at 797.

[^119]: *Id.*

[^120]: *Id*.

[^121]: Jones v. Barnes, 463 U.S. 745, 751 (1983).

[^122]: Beckham v. Wainwright, 639 F.2d 262 (5^th^ Cir. 1981).

[^123]: United States v. Kendig, 36 M.J. 29, 295 (C.M.A. 1993).

[^124]: In United States v. Sorbera, 43 M.J. 818 (A.F.Ct.Crim.App. 1995)
    the Air Force Court of Criminal Appeals also recognized a claim of
    ineffective assistance of pretrial counsel. In that case, the
    accused was charged with committing indecent acts with his daughter.
    Even though his commander had ordered him not to have contact with
    his daughter, the defense counsel advised the accused to call his
    ex-wife and offer her custody of the girl and child support. He also
    suggested the accused advise his ex-wife of the ramifications of the
    child's continuing to lie to authorities. The accused did so and
    urged his ex-wife to keep the child from returned to Germany to
    testify against him. As a result, an additional charge of
    obstruction of justice was preferred against the accused. Applying
    the *Strickland* standard, the court held that by failing to advise
    the client of the potential consequences of his actions the
    attorney's legal advice in the pretrial stage rose to the level of
    ineffective assistance of counsel.