When an appellant alleges that he suffered from ineffective assistance of counsel at trial, he has a heavy burden. He must prove both that his counsel’s performance was deficient and that the deficiency resulted in prejudice. United States v. Green, 68 M.J. 360, 361 (C.A.A.F.) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). His counsel’s performance is given great deference, and the prejudice must be significant enough to “undermine confidence in the outcome” of the trial. Strickland, 446 U.S. at 693.
In United States v. Datavs, the Air Force Court of Criminal Appeals found that the two Trial Defense Counsel were deficient in their performance when they conducted their cross-examination of the Government’s Sexual Assault Nurse Examiner (“SANE”) expert witness without the benefit of the assistance of an expert of their own; particularly when the Government’s expert gave unexpectedly-damaging testimony on the matter of whether the victim’s injuries were indicative of non-consensual anal intercourse. Datavs, 70 M.J. 595, 600-601 (A.F.Ct.Crim.App. 2011). However, the CCA found that the Appellant did not suffer prejudice based on factual similarities between the testimony of the Government’s expert and the post-trial report of an expert retained by the Appellant, and concluded that “we are not convinced that there is a reasonable probability that, even if [the expert] assisted the defense counsel during the trial, there would have been a different result.” 70 M.J. at 602 (internal marks omitted).
The AFCCA issued its opinion on November 9, 2011, and the Judge Advocate General of the Air Force (joined by the Appellant) sought reconsideration. That request was denied, and on February 10, 2012, the JAG 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.
But in a unanimous opinion authored by Judge Ryan, CAAF affirms the AFCCA without really answering either question.
The opinion begins by agreeing with the AFCCA that the Defense decision to not challenge two members who were base victim advocates, and to not admit phone records of the victim, were “strategic choices [that] fell within the bounds of reasonable performance.” United States v. Datavs, No, 12-5001/AF, slip op. at 11 (C.A.A.F. December 12, 2012). But on the matter of the Defense decision to forgo an expert consultant, the Court limits its consideration to the question of prejudice, reasoning that “if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Slip op. at 11 (quoting Strickland, 466 U.S. at 697).
Adopting a word used by Chief Judge Baker during a number of oral arguments this term, the opinion finds that:
Appellee fails to demonstrate a sufficient “delta” between the probative weight of SANE Burton’s testimony following defense counsel’s unassisted cross-examination and the probative weight of that testimony had defense counsel either (1) cross-examined SANE Burton with the benefit of expert assistance, or (2) countered with testimony from a defense expert.
Slip op. at 12-13. This leads CAAF to determine that the Appellee’s convictions “would still have hinged on whether the members found [the victim’s] testimony that she did not consent credible,” and that the lack of expert assistance was non-prejudicial. Slip op at 15.
However this conclusion largely avoids the certified question of whether the AFCCA “incorrectly applied the standard of law . . . when evaluating whether trial defense counsel was ineffective for not seeking expert assistance,” and the granted question of whether Appellee “received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant.” Both of these questions asked CAAF to reach the matter of whether it is deficient for a trial defense counsel to fail to request expert assistance mid-trial when a Government expert gives unexpectedly-damaging testimony (the facts of this case). But CAAF’s opinion only goes so far as to say that “[t]o the extent that the AFCCA’s decision might be read to say that counsel’s performance is per se deficient by failing to counteract an adverse expert’s unexpected testimony with an expert witness of their own, that would be an erroneous statement of the law.” Slip op. at 16. The opinion makes clear that this was not per se deficient, but it specifically refuses to address any actual deficiency:
Since we conclude that Appellee was not prejudiced by any alleged error, see supra Part III.C., we do not reach the question whether defense counsel’s decision not to renew the defense motion for expert assistance in fact constituted deficient performance in this case.
Slip op. at 16 (emphasis added). Moreover, the opinion strongly implies – but does not explicitly state – that CAAF finds this question to be mooted by its prejudice analysis:
Appellant won below on the absence of prejudice, and we agree with the AFCCA that there is no prejudice. See United States v. Gilley, 14 C.M.A. 226, 226-27, 34 C.M.R. 6, 6-7 (1963) (holding the questions presented moot because “[p]ractically speaking, any action which we might take with respect to the certified issues would not materially alter the situation presented with respect either to the accused or the Government”); see also United States v. McIvor, 21 C.M.A. 156, 158, 44 C.M.R. 210, 212 (1972) (holding the certified questions moot because resolution of the issue would not “result in a material alteration of the relationship of the parties”); United States v. Aletky, 15 C.M.A. 536, 536-37, 37 C.M.R. 156, 156-57 (1967) (holding the certified question moot because the accused had been separated from the service).
Slip op. at 16-17. Despite the choice of authorities, this is not the first time in four decades that CAAF has refused to answer a certified question on mootness grounds (see, for example, United States v. Miller, 62 M.J. 471, 475 (C.A.A.F. 2006)).
CAAF’s resolution of this case leaves in a sort of limbo the AFCCA’s finding that the Trial Defense Counsel were deficient when they failed to request expert assistance, and the basis for that conclusion is worth a closer look:
While we find the defense decision to withdraw the request for an expert in exchange for limiting TB’s testimony was within the bounds of reasonable performance expected from competent counsel, we conclude that defense counsels’ failure to seek production of a SANE expert after TB testified was not. . . . once trial defense counsel realized TB’s testimony changed from the expected benign description of the anal injuries to providing her opinion that the trauma was extremely significant and resulted from forcible penetration, accompanied by a substantial discussion of the medical findings she made during her examination, trial defense counsel should have realized they were unprepared to cross-examine her. Because of the importance of TB’s testimony and counsels’ unfamiliarity with the subject matter, the prudent course of action would have been to ask the military judge for a delay to request expert assistance. We find counsels’ failure to obtain expert assistance at this point of the trial fell measurably below the performance ordinarily expected of fallible lawyers. By defense counsels’ own admission, they did not have the training or expertise to fully understand the medical evidence presented by TB.
Datavs, 70 M.J. 600 (emphasis added). Trial defense counsel routinely face witnesses who provide technical evidence that counsel do not “fully understand.” In this context, it’s easy to understand why the JAG certified this case, and hard to understand why CAAF refused to reach the underlying question of deficiency. And that means that it’s just a matter of time before the underlying question is before CAAF again.
• 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
• Oral argument audio
• Blog post: Argument recap
• CAAF opinion
• Blog post: CAAF issues Datavs opinion
• Blog post: Opinion analysis