Litigating IAC in the post-Melson world

CAAF's decision in United States v. Melson, __ M.J. ___, 08-5003/AF (C.A.A.F. May 30, 2008), will probably considerably alter the way that ineffective assistance claims are litigated in the military.

Melson holds that a CCA can't find IAC without first ordering the production of an affidavit from the trial defense counsel. Without regard to whether existing law already included such a requirement -- a point of contention between the majority and the dissent -- I think that this requirement is a change from the previous practice.

Here is Melson's procedural approach to IAC claims:

1. A CCA considering an IAC claim must consider "whether 'the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence.'"Melson, slip op. at 11-12 (quoting United States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995)).

2. "If this threshold is met, the appellate court then must compel the defense counsel to explain his actions." Id., slip op. at 12. "[A]t this point in appellate proceedings, the Court of Criminal Appeals [is] required to order a response from the trial defense counsel as to the allegations." Id. (emphasis added). For the CCA to decide the IAC claim in the defense's favor "without directing defense counsel to answer the allegations" is "error." Id.

CAAF expresses its hope that Melson won't dissuade appellate government counsel from providing affidavits from trial defense counsel before the CCA has found that the defense has made a prima facie showing of IAC. Id., slip op. at 13. But my prediction is that after Melson, appellate government counsel will almost never do so. This is because many trial defense counsel are uncomfortable about providing such affidavits to government counsel -- even though they are certainly entitled to defend themselves once their former client has attacked their competence -- and because appellate government counsel will find it tactically advantageous to wait until the CCA has indicated its particular concerns about the trial defense counsel's performance before obtaining an affidavit.

So here is how I expect IAC claims to be almost universally litigated in the post-Melson world in which we now practice. First, the defense will provide an affidavit from the accused seeking to establish a prima facie case of IAC. In most cases, the CCA will rule that the defense failed to establish a prima facie case. The defense will then petition CAAF, seeking review of whether the CCA should have found that it established a prima facie case of IAC. In most cases, CAAF will deny the petition and the case will become final. In some small subset of cases, CAAF will grant the petition and in some subset of those cases, CAAF will find that the CCA erred by not finding a prima facie case of IAC and will remand the case to the CCA for the government to obtain a declaration from the TDC. The case will then return to the CCA, where the declaration will be obtained, a new round of briefing -- and possibly oral argument -- will follow, and the CCA will rule on the IAC claim. But presumably at that point, Ginn II still applies. So in many, if not most, cases, the CCA still won't be able to rule on the merits of the defense claim. Because unless the TDC has essentially supported the IAC claim, there will now be a battle of dueling affidavits, since we know that the defense has already made a prima facie showing of IAC. So the likely result of any such proceeding will be a DuBay hearing.

Following such a DuBay hearing, the case will return to the CCA, where another round of briefings -- and possibly oral argument -- will follow. Then the CCA can finally rule on the IAC claim's merits. If the defense loses, then the defense will seek review from CAAF again, this time on the IAC claim's merits. If the government loses, the government might seek to have the case certified to CAAF for it to determine the IAC claim's merits.

In a small subset of IAC cases, the CCA will initially determine that the defense has established a prima facie case of IAC. The CCA will then issue some sort of interlocutory finding reflecting that determination and order the government to obtain an affidavit from the trial defense counsel explaining the apparent deficiency in performance. Presumably then a second round of briefing -- and possibly oral argument -- will follow before the CCA can then consider whether the TDC has essentially admitted facts establishing IAC or whether a DuBay hearing is necessary.

So in practice, litigation of colorable IAC claims in the post-Melson world will be considerably more complicated -- and lengthy -- than in the pre-Melson world. Let's all follow along at home to see if Melson plays out as I predict.