Last week, AFCCA heard oral argument in United States v. Datavs. The hearing took place at the Nevada Supreme Court and, as Colonel Sullivan surmised, I had the opportunity to attend.
SrA Datavs was tried in 2009 by a panel of officer and enlisted members on one specification of making a false official statement, in violation of UCMJ Article 107 , and two specifications of forcible sodomy, in violation of Article 125. He pled not guilty to all three specifications but was convicted despite his pleas. The members sentenced him to a dishonorable discharge, reduction to E-1, and total forfeitures. The convening authority approved the sentence as adjudged.
On appeal, SrA Datavs made four assignments of error: ineffective assistance of counsel, error by the military judge in limiting argument concerning sex offender registration, violation of RCM 1107 by imposition of total forfeitures with no confinement, and inappropriate sentence severity. The government conceded the RCM 1107 violation, but otherwise urged the court to reject the appellant’s claims. The court granted oral argument on the first assignment of error, concerning the performance of the trial defense team.
The primary focus of the argument was on whether the trial defense counsel violated Strickland and Polk by failing to pursue appointment of a defense expert consultant in the field of sexual assault exams. The government had an expert who testified that the victim sustained injuries consistent with forcible anal sodomy. The defense requested an expert prior to trial, but the convening authority rejected their request. The defense then moved to compel appointment of an expert consultant, but withdrew the request pursuant to an agreement limiting the scope of the government expert’s testimony.
On appeal, SrA Datavs argued that his counsel should not have given up on obtaining their own expert. His appellate defense counsel, Major Michael Kerr, noted that such requests are routinely granted and cited post-trial submissions by the requested expert that contradicted the government witness’ testimony as evidence that the trial team should have persisted. Without a defense expert, the cross-examination of the government witness was largely unsuccessful, and only one side of the case was presented to the members.
Government counsel, Captain Michael Rakowski, argued that the trial defense team adequately explained their strategy in the post-trial affidavits filed with the court. In essence, the trial team believed they could successfully counter the testimony of the government expert, who they thought would be equivocal when crossed on the issue of consent . They were concerned that persisting in their request for an expert would lead to a delay they did not want, because they knew of two witnesses who the prosecution team had not identified and whose testimony would be damaging. They feared the government would find those witnesses during a delay and on balance concluded foregoing an expert was the better option. Capt Rakowski argued that even if the defense strategy was deemed deficient, there was no prejudice, because the victim’s testimony alone would have been enough to secure a conviction. He also noted that the trial defense team achieved an excellent result on sentencing — no confinement, despite a conviction on two specifications of forcible sodomy, is by almost any measure a defense win.
Maj Kerr argued that the light sentence did not absolve the trial defense team of any shortcomings in the findings phase of the case. If anything, he argued, the sentence could be construed as evidence that the members considered the government’s case to be weak. He also took issue with the notion that the trial defense counsel had enough information to formulate a strategy, pointing to language in the original consultant request stating that the defense team had neither the training nor the experience to defend the case without expert assistance. Whatever strategies they may have settled on thereafter could not be defended, he argued: “Uneducated counsel cannot make strategic decisions.” Moreover, because the military judge ultimately granted a delay despite the trial defense team’s wishes, they should have realized that the advantage they sought to gain by foregoing an expert was lost and renewed their request.
The judges seemed troubled by the deal between the government and the defense. Given the nature of the defense concerns (i.e., that the government was unaware of certain evidence), it would have been virtually impossible for the defense to fully explain why they were agreeing to what one judge called a sub-rosa agreement. In my experience, when faced with withdrawal of a motion for an expert, the trial judge would ordinarily ask the accused whether his counsel advised him of their reasons for withdrawing the request and whether he believed their decision was in his best interest; but neither counsel suggested that such a colloquy occurred in this case.
The judges were also concerned about the trial defense counsel’s assertion that they lacked sufficient expertise to try the case without a consultant. It’s easy to envision a distinction between the expertise needed to choose between several possible trial strategies and the expertise needed to pursue one or more of those possible paths: for instance, a counsel might not need the assistance of a DNA expert to determine that mistaken identity will not be a viable defense, even though such an expert would be required if identity was going to be the issue. In some cases, however, the assistance of the expert might be needed to choose between strategies. Neither side explored this issue in depth during argument. It will be interesting to see how the court addresses it when the decision is released.
* Disclosure note: the senior trial defense counsel worked for me indirectly prior to my retirement.