The NMCCA held that telling the substitute convening authority that Appellant was in desertion status when it was not clear from the record that would would have known it, and failing to present clemency where the record shows there was matters in the record she could have cited amounted to ineffective assistance of counsel.
Additionally, we find the trial defense counsel was deficient in her failure to submit any clemency matters to the convening authority. [*6] The appellant is entitled to representation of counsel at this critical stage of the court-martial proceedings. See United States v. Palenius, 25 C.M.A. 222, 2 M.J. 86, 90, 54 C.M.R. 549 (C.M.A. 1977). She had represented the appellant at trial and was aware of his record and circumstances surrounding the offense. Lack of contact with the appellant does not allow the defense counsel to sua sponte terminate her obligation to represent the appellant in this regard. Id. Based on this record, it appears that counsel could have made a presentation of some substance to the convening authority. United States v. Howard, 47 M.J. 104, 108 (C.A.A.F. 1997); see also United States v. Hickock, 45 M.J. 142, 145 (C.A.A.F. 1996). In this case, the appellant was doubly damned by the action and inaction of his trial defense counsel.The problem is that Howard and Hickock don't say what the NMCCA suggests they say. In Howard, the defense counsel separated after trial and substitute counsel was appointed. The substitute counsel never contacted the accused, who was available to meet with counsel, and submitted a pro forma clemency statement. The Court said:
Based on this record, it appears that counsel could have made a presentation of some substance to the convening authority. Defense counsel had made a sentencing argument at trial that could well have been the starting point for attorney-client discussions between appellant and substitute counsel [**12] regarding what to submit to the convening authority post-trial.United States v. Howard, 47 M.J. 104, 107 (C.A.A.F. 1997). Hickock contained similar facts--the substitute counsel never contacted or communicated with the accused and did not submit any clemency materials to the convening authority. There is nothing to suggest the accused had made himself unavailable to counsel.
I am not sure what the defense counsel should have done. Regardless of the NMCCA's opinion, I can't believe the substitute convening authority did not know the accused was UA. And many of the cases, including those cited by the NMCCA, speak of the importance of the attorney-client relationship and counsel not submitting clemency matters without input from the client. Even if someone can convince me this is ineffective assistance of counsel, it is still hard to reconcile the case cites in the NMCCA opinion with the facts in this case.