The first oral argument of the September 2012 Term at CAAF is United States v. Datavs, No. 12-5001/AF, which will be argued on Tuesday, October 9. The case involves allegations of ineffective assistance of counsel that caused the Judge Advocate General of the Air Force to certify the case despite the CCA affirming the findings.
In 2009, Senior Airman (SrA) (E-4) Datavs was convicted, contrary to his pleas, by a general court-martial comprise of a panel with enlisted representation, of making a false official statement and forcible sodomy, in violation of Articles 107 and 125. He was sentenced to a dishonorable discharge, reduction to E-1, and total forfeitures. The convening authority approved the sentence as adjudged. At the AFCCA, SrA Datavs raised five assignments of error, one of which questioned:
Whether Appellant received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant in the field of sexual assault examinations, failed to make challenges for cause against two panel members that were also base victim advocates, failed to prepare the necessary foundation to admit telephone records for the purpose of impeaching the complaining witness, failed to argue mistake of fact during findings argument, and failed to present evidence in sentencing regarding sex offender registry requirements.
The AFCCA issued a published* opinion in which it found that SrA Datavs’ trial defense counsel’s performance was deficient, but determined that absent the errors, the result at trial would have been the same. After correcting an error in the Convening Authority’s action (only 2/3 forfeitures may be approved in the absence of confinement), the CCA affirmed the findings and sentence.
*One note: The AFCCA opinion, which was issued on November 9, 2011, appears on its face to be a published opinion. However, in its brief on the certified issue the Government calls the opinion unpublished (Appellant’s Br. at 3). The Appellee’s brief calls the opinion published and provides a citation, 70 M.J. 595 (Appellee’s Br. at 3).
Despite “winning” at the CCA, the Judge Advocate General of the Air Force sought reconsideration (that request was joined by SrA Datavs, but denied by the court), and then certified the case to CAAF with the following issue:
Whether the Air Force Court of Criminal Appeals incorrectly applied the standard of law under Strickland v. Washington, 466 U.S. 668 (1984) and Harrington v. Richter, 131 S.Ct. 770 (2011), when evaluating whether trial defense counsel was ineffective for not seeking expert assistance during trial after the government’s expert witness testified.
Subsequently, CAAF granted review of the following additional issue:
Whether Appellant received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant in the field of sexual assault examinations, failed to make challenges for cause against two panel members who were base victim advocates, and failed to properly impeach [S.M.F.] using her personal telephone records.
The primary trial-level decision at issue is the trial defense counsels’ (there were two of them) decision to forgo a defense expert consultant in the form of a SANE (“sexual assault nurse examiner”). The defense had requested a consultant by name (Ms O’Neal), but withdrew that request pretrial in exchange for limiting the testimony of the Government’s SANE (Ms Burton). The CCA found this decision to be reasonable. However, when the Government’s SANE testified at trial, the testimony was more damaging to the defense than expected. Accordingly, the CCA found that the defense counsel were deficient by failing to renew the request for expert assistance in order to prepare for cross-examination of the Government’s expert. The certified and granted issues parse this decision by questioning the actions of defense counsel before the Government’s expert testified (granted issue) and after the expert testified (certified issue).
The factual background of the case involves anal and oral sodomy that occurred contemporaneous with consensual vaginal intercourse between SrA Datavs and [S.M.F.], on or about July 28, 2008, when [S.M.F.] went to SrA Datavs’ residence after she learned that he had received deployment orders to Turkey (of note, they had engaged in consensual vaginal intercourse approximately 1-2 weeks earlier). The next day, [S.M.F.] reported to her mother that she had been raped, and she went to the emergency room where she was examined by Ms Burton, who was a family friend, and who testified for the Government during the Article 32 pretrial investigation, and at trial.
Trial defense counsel interviewed Ms Burton multiple times, and observed her testimony during the Article 32. Ms Burton expressed opinions about injuries to [S.M.F.]’s vagina and anus. The defense requested appointment of Ms O’Neal as an expert consultant, but withdrew this request in exchange for the Government agreeing to limit Ms Burton’s testimony to only the anal examination, as the defense was apparently worried that the vaginal injuries could cause the members to perceive the entire encounter as violent. The defense also apparently believed that Ms Burton’s testimony would not describe the injuries to [S.M.F.]’s anus as severe enough to establish non-consensual sodomy. However, at trial Ms Burton described [S.M.F.]’s injuries as more severe than she had revealed in any of her pretrial statements, and SrA Datavs was convicted.
Despite not obtaining an expert at trial, in clemency the defense submitted a post-trial report from Ms O’Neal, procured at the expense of SrA Datavs’ family. That report challenged the conclusions of Ms Burton, as well as her credibility. The report provides the basis for much of the attacks on the trial effectiveness of the defense counsel.
The other two alleged deficiencies are the failure of trial defense counsel to challenge for cause the inclusion of two victim advocates on the members panel, and the alleged failure to successfully impeach [S.M.F.] through use of phone records showing communication with SrA Datavs after the encounter on July 28. Both of these alleged deficiencies get relatively-little attention in the briefs, but there is this particularly noteworthy passage in the Government’s brief as Cross-Appellee regarding the inclusion of victim advocates on the panel:
After the defense confirmed that they had no further challenges for cause, the military judge specifically asked counsel and Cross-Appellant whether they were willing to waive any challenge of [the two victim advocates]. Trial defense counsel stated they did not desire to challenge either [victim advocate]. As further protection of Cross-Appellant’s rights, the military judge specifically inquired with Cross-Appellant whether he understood the consequence of not challenging these members. Cross-Appellant expressly waived any challenge for cause against [either victim advocate] and specifically confirmed he discussed this decision with his counsel. Capt E.P.’s Declaration also explained how she and Maj J.O. discussed with Cross-Appellant whether to seek removal of the two members, but they decided that keeping both on the panel may be advantageous.
Cross-Appellee’s Br. at 26-27. Given the relatively-little attention paid to these arguments in the briefs, I anticipate they won’t get much attention from CAAF during oral argument.
However, on the question of the defense expert consultant, there is a good deal for CAAF to examine. The Government presents this case as an instance of the CCA second-guessing the tactical decisions of defense counsel with the benefit of hindsight and in the context of an unsworn, unchallenged report of a SANE hired by the family of the Accused. The appellate defense counsel present this as a case of unprepared trial defense counsel who failed to conduct an adequate pretrial investigation or obtain necessary expert assistance, and who compounded those errors by failing to renew the request for expert assistance once the Government’s case was found to be more damaging than expected. Even if the court tends to agree with any of the appellate defense arguments, there is still the question of whether a different trial decision would have changed the result – the matter on which the CCA declined to grant relief, finding at page 8 of its opinion:
The crux of the appellant’s argument is that his trial defense counsels’ decision to proceed without expert assistance led to his conviction. We disagree. The outcome in this case was based primarily upon the credibility of SF and Detective RP. Trial defense counsel pointed out the many inconsistencies in SF’s testimony during cross-examination and closing argument. The panel members had an opportunity to hear SF’s and Detective RP’s testimony and to observe their demeanor. After hearing their in-court testimony and the arguments of counsel, the members concluded the appellant made a false official statement when he claimed, “I’ve never, ever had anal sex,” and “it may have slipped if I was going from behind or something.” They also found the appellant forced SF to perform oral sex on him without her consent in the first instance. Additionally, they found the appellant guilty of committing forcible anal sodomy.
I anticipate that this complicated case will mark a lively beginning to a lively term.
• Blog post: CCA oral argument recap
• AFCCA opinion
• Appellant’s (Government) brief
• Appellee’s brief
• Cross-Appellant’s brief
• Cross-Appellee’s (Government) brief
• Blog Post: Argument preview