(concurring):
As the majority indicates, appellant’s burden in asserting ineffective representation of counsel is to “establish both incompetence and prejudice.” United States v. Scott, 24 MJ 186, 188 (CMA 1987); accord United States v. Harris, 34 MJ 297 (CMA 1992). As the Supreme Court articulated the standard in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):
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 *308deprive the defendant of a fair trial, a trial whose result is reliable.
Though phrased in terms of trial representation, “[c]onsistency requires that we measure appellate advocates by the same standard that we have invoked for trial lawyers.” United States v. Hullum, 15 MJ 261, 267 (CMA 1983). Thus, our inquiry here is: First, whether appellate defense counsel’s waiver of oral argument of his assigned and briefed issue of legal and factual insufficiency of the evidence before the Court of Military Review was “unreasonable under prevailing professional norms,” see United States v. Scott, supra at 188; and, second, if so, “whether there is a reasonable probability that, absent the” waiver, the Court of Military Review would have concluded that the evidence was legally or factually insufficient to sustain the conviction, see id. at 189, quoting Strickland v. Washington, supra 466 U.S. at 695, 104 S.Ct. at 2068.
My dissenting colleagues rely upon Hullum for their conclusion that appellant has carried his burden. There, the accused had defended against charged unauthorized absences by contending that he had felt that his life would be in danger if he had stayed. This Court’s opinion makes clear that defense evidence in support of that contention was significant. After he had been convicted, nonetheless, the military judge had imposed a sentence, inter alia, to a bad-conduct discharge and confinement for 4 months, but the military judge had conditionally recommended suspension of the punitive discharge. Although he suspended the confinement in excess of 90 days, the convening authority did not suspend the discharge.
In this context, appellate defense counsel before the Court of Military Review in Hullum requested and received “four enlargements of time because of ‘extremely heavy caseload of counsel.’ Finally, appellate defense counsel submitted the case to the court below ‘without specific assignment of errors’ and with a ‘waiver of oral argument.’ ” 15 MJ at 262. Counsel urged neither the circumstances revealed at trial, the military judge’s recommendation, nor the accused’s good service record as a basis for asking the Court of Military Review to reduce his client’s sentence.
Under “the unique features of” that case, id. at 267, the majority of this Court explained in some detail why it concluded that appellate defense counsel’s representation was both deficient and prejudicial. Tellingly, the Court pointedly observed that “appellate defense counsel presented no claims or contentions whatsoever—even though the case was being reviewed by a court empowered to consider not only the law but also the facts and the appropriateness of sentence.” Id. at 266.
The instant case, of course, is an animal of a far different color. First, appellate defense counsel here did challenge both the legal and the factual sufficiency of the evidence in the Court of Military Review and argued both in his brief in a manner that is not charged here as deficient. Thus, appellant’s basis for his claim of deficient representation—in marked contrast to Hullum—did not extend to counsel’s failure to urge his cause at all before the appellate court but, instead, was limited to counsel’s declination to orally argue these same issues. Yet, having affirmatively asserted his client’s cause in writing, there might be any number of reasons why counsel might decide to forgo oral argument, as the majority opinion notes. 34 MJ at 306. Indeed, in light of the solid strength of the prosecution’s case, oral argument here might well have served only as an opportunity to vividly showcase the uphill nature of his claim of evidentiary insufficiency of guilt.
Second, any prejudice to appellant from counsel’s not orally arguing the issues that he had raised and briefed in writing is belied by the summary of evidence in the majority opinion, which capably demonstrates the lack of any foundation for concluding “that there is a reasonable probability that, absent the” waiver of oral argument, the Court of Military Review would have found the evidence either legally or factually insufficient to uphold appellant’s *309conviction. See Strickland v. Washington and United States v. Scott, both supra.
I share the concern that appellate defense counsel be ever sensitive to their legal and professional responsibility to aggressively pursue their client’s cause in the Court of Military Review and in this Court. That does not suggest, however, that where counsel does so in a fully capable manner in his written brief, his waiver of a request to orally argue his position necessarily is either deficient or prejudicial, much less both. Under the circumstances of this case, I believe that is what the dissenters incorrectly imply.
SULLIVAN, Chief Judge, joined by GIERKE, Judge (dissenting):At the trial level (see United States v. McGillis, 27 MJ 462 (CMA 1988)) and the post-trial level (see United States v. Polk, 32 MJ 150, 153 (CMA 1991)), this Court has not hesitated to secure affidavits from counsel when ineffective-representation claims are made. See United States v. Harris, 34 MJ 297 (CMA 1992). I see no reason why the same approach is not utilized where an ineffective-assistance-of-counsel claim is raised concerning counsel’s performance at the Court of Military Review.
Appellant is facing an approved sentence of life imprisonment. The evidence of his guilt of felony murder was circumstantial and perhaps conflicting in certain critical respects. In view of the Court of Military Review’s unique powers which permit the reconsideration of factual questions de novo as well as redetermination of an appropriate sentence, Art. 66(e), Uniform Code of Military Justice, 10 USC § 866(c), counsel’s waiver of oral argument in these circumstances is incomprehensible and prejudicial. See generally United States v. Hullum, 15 MJ 261 (CMA 1983).
Here, the Court of Military Review, using its important Article 66 power, found the following nine key facts to support appellant’s conviction for felony murder:
a. appellant was under financial strain caused by debts, the cost of taking care of Lisa, Lisa’s expensive tastes, and their impending marriage;
b. appellant was jealous and upset at the stranger’s offer of a job to Lisa and Lisa’s consideration of it because of her perceived need for more money;
c. at some point, appellant determined to rob the female taxi driver, who was apparently an easy robbery victim;
d. appellant caused the taxi driver to return him to his barracks and wait for him while he obtained his survival knife to assist in the robbery;
e. appellant had the taxi driver go to a relatively isolated area;
f. when the taxi stopped, in order to obtain money, appellant placed the knife at the neck of the taxi driver;
g. unexpectedly, the female taxi driver resisted, her neck was cut and during the ensuing altercation[,] appellant stabbed her 18 times resulting in her death; and
h. appellant could not find the hidden taxi driver purse and was scared away by the two individuals investigating the reason for the horn blowing.
We further find unpersuasive appellant’s statements that he went back to the room to discuss his friend’s problems, that he was going to commit suicide, and that he never intended to rob the taxi driver.
Considering these facts, we find beyond a reasonable doubt that appellant killed the taxi driver while attempting a robbery. See United States v. Turner, 25 MJ 324 (CMA 1987).
In view of these circumstances, explanation for waiver of oral argument, not speculation, is required. See United States v. Tyler, 34 MJ 293 (CMA 1992).