defendant in robbery trial chose to testify when the only evidence against him was the identification by the store employee who got only a glimpse of the robber. The threat to withdraw was seen by the court as unprofessional conduct, and but for this conduct there was a good probability that the defendant would have been found not guilty. New trial granted. 2. U.S. District Court Cases 1998: United States v. Lore , 26 F. Supp. 2d 729 (D.N.J. 1998). Counsel ineffective for failing to advise the defendant, who wanted to testify in his own defense, that he could overrule the tactical decision by his attorney that he should not testify. Defendant charged with two co-defendants in loansharking activities. It was undisputed that he repeatedly told counsel he wanted to testify and that counsel told him that it was counsel’s decision to make and that he would not testify. Prejudice found because the government’s evidence against Lore was weaker than against other co-defendants and the testimony Lore proffered in motion to vacate could have provided a rational non-criminal explanation for what the government alleged were extortionate activities. 1996: Campos v. United States , 930 F. Supp. 787 (E.D.N.Y. 1996). Counsel in drug case was ineffective where government evidence consisted almost solely of testimony of DEA agent, defendant expressed desire to testify, but counsel refused to allow testimony and never advised defendant that whether he testified or not was defendant’s choice to make. Court found reasonable probability that outcome may have been different if defendant had testified. 1985: United States v. Frappier , 615 F. Supp. 51 (D.C. Mass. 1985). Counsel ineffective for advising defendant to testify where testimony could have been brought in by proffer under Bail Reform Act and counsel did not properly prepare the defendant to testify. 3. Military Cases
*Capital Case ADVICE-RIGHT TO TESTIFY 307 1991: United States v. Henriques , 32 M.J. 832 (N.M.C.M.R. 1991). Military defense counsel ineffective in desertion case where accused pled guilty to absence without leave (AWOL) and then defense counsel called accused to the witness stand to testify that he intended to return to the Navy but did not intend to return to his unit. Defense counsel’s belief that this testimony negated guilt of desertion was erroneous because only an intent to return to his unit would have negated an element of the offense. Without the testimony of the accused probably would have been convicted only of AWOL. 4. State Cases 2004: People v. Calhoun , 815 N.E.2d 492 (Ill. App. Ct. 2004). Counsel ineffective in burglary case for coercing the defendant to waive his right to testify because counsel did not believe the defendant’s version of events, which contradicted the victim’s testimony. Counsel cannot “force his client to choose between testifying without his counsel’s assistance or not testifying at all, when defense counsel’s determination that his client will commit perjury on the witness stand is based solely on counsel’s assessment of the evidence.” 2002: *Cooper v. Moore , 351 S.C. 207, 569 S.E.2d 330 (2002).
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