United States v. Datavs, 71 M.J. 420 (C.A.A.F. Dec. 14, 2012) (CAAFlog case page) (link to slip op.),

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.

Case Links:
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

15 Responses to “Opinion Analysis: United States v. Datavs, No. 12-5001/AF, 71 M.J. 420”

  1. Dew_Process says:

    Good analysis ZS, thanks.

  2. Jason Grover says:

    Thanks Zach. I have only read the CAAF decision, and not the AFCCA decision, but I don’t like the idea that it could be IAC for defense not to call their own expert. In my experience, an effective cross-examination can often raise the points needed in response to an expert witness without having to call your own expert and presenting the members with a “battle of the experts.” I suppose it is a more involved ponit whether expert assistance was needed to make the cross-examination effective, but here we have injuries and the government expert saying they could have been caused by consensual or non-consensual activity (or in other words, we don’t know how they were caused).

    A wise, experienced capital defender once told me that there were only two ways to respond to the government’s expert: (1) “you’re wrong!”, or (2) “who cares?” Seems like if the defense was going to go with a “you’re wrong!” theory, you need an expert. If you are going with “who cares?” – in this case a “we-can’t-tell-anything-about-the-consent-from-the-injuries” argument – you don’t need a expert.

  3. Phil Cave says:

    Jason, so why was it necessary for the government to have an expert here?  All SANE and other experts should normally testify that you can’t tell if most injuries are from consensual, non-consensual, or self sex.  Query, is such ambiguous testimony about injury excludable under MRE 403?  Isn’t the calling of the expert a “We don’t know — wink, wink, whether it was forced non-consent related, but I’m an expert for the government so, wink, wink, nod, nod, it was an assault.”

  4. Jason Grover says:

    Phil, good point. Again, I have only read the CAAF opinion, but it seems to me that testimony like that (“there’s an injury and it is consistent with non-consensual activity, and with consensual activity”) may be objected to as not relevant. It does not make a fact of consequence more or less likely. Perhaps the expert is needed to establish that there was in fact an injury in the first place.

    This is similar to the rape-trauma expert. I have called them as a prosecutor to help explain why a victim may have engaged in counter-intuitive behaviors after a sexual assault. But at the end of the day, all the expert really can say is people respond differently to trauma. A point that doesn’t seem to need an expert. After a few cases using such an expert, I stopped calling one in those sorts of cases as I wasn’t sure I was adding anything and it just seemed messy. But later, in another tour as a TC, I started using them again thinking that if I had the expert say it, I could say to the members, “And remember, your heard Dr. So-and-So say everybody reacts differently to trauma” rather than “use your commonsense, everybody reacts differently to trauma.” Not sure which approach was more effective. The issue often came up in those difficult (as in what-really-happened?) cases involving alcohol and conflicting testimony on consent.

    As far as Mil. R. Evid. 403, I’m not sure, though I would start out with a simple Mil. R. Evid. 401 argument that it just isn’t relevant – it doesn’t make a fact of consequence more or less likely and is not helpful to the members. But I imagine most MJs just let it in and let the members sort it out.

  5. stewie says:

    But the problem was that they didn’t know if it was you’re wrong or it was who cares based on their own admission.
    You can’t make a tactical decision if you don’t know which of those two options it is. I concur that DC often do make a tactical decision not to call an expert witness (although I don’t know why you wouldn’t ask for an expert consultant in this case, I mean what would it have hurt?).
    But usually that decision is made after either deciding the government expert will say what they expect them to say and “who cares” or after consulting their own expert and knowing their expert has nothing of help to the defense to justify calling to the stand.
    Neithe situation appears to be evident here.

  6. Phil Cave says:

    Jason, I agree that it should be a 401 and 403 objection, thanks.  And yes, the “trauma reaction” expert is of the same ilk.  The trouble with TR experts is that it often tends to come across as a diagnosis; often because the TR expert is there as an advocate rather than what a true expert should be.  I do take your point about argument.  But in this day and age most members (in my experience) are able to say during voir dire that they understand the different reactions and “myths,” because of the extensive training they are getting.  So isn’t that an additional argument against the need for experts.  Yes, the medical examiner can say there was an injury.  So the counter argument could be that the defense needs the expert to say that the presence of the injury is not indicative of a non-consensual act if the prosecution doesn’t call one.  Huuuuum.
    Stewie, I agree.  I’ve had an expert sitting with me in court and not called him.  That’s because we conclude that there is nothing he can give value added, or sometimes can add harm.  But in each situation I have had the expert consultant there in court with me to ensure we are prepared for the “surprise” testimony.  In a number of cases I have found the mere presence of the expert alone is enough to keep the prosecution expert in their lane and consistent with the facts and literature.
    Also, IMHO a DC should always have an expert on the team as a consultant, but a failure to call the expert is not per se IAC – I think CAAF has the second part of that right.  As I read the briefs and opinions here I’m of the view that the defense should have pushed having the consultant present.  But certainly if the consultant would have concluded as the consultant did here in the appellate process -that’s not prejudicial, So I think AFCCA and CAAF has that part right.  I don’t think TC’s deliberately misrepresent the nature of an expert’s expected testimony.  I do think sometimes they themselves aren’t in a position to accurately represent the expected testimony – we’ve all seen experts change-up on TC’s.  So I’m usually inclined to disregard the TC’s “proffer” in such a case; again not because I think the TC is lying to me or trying to sandbag me — it’s the so-called expert I worry about.

  7. Charlie Gittins says:

    “In a number of cases I have found the mere presence of the expert alone is enough to keep the prosecution expert in their lane and consistent with the facts and literature.”
    I agree, Phil.  If the Government needs an expert, I always felt like I did too.  I cannot count the number of times having my expert toxicologist sitting at the table or in the gallery kept a Govenment chemist in his lane in a urine case, usually to the effect that I have had 917 motions granted frequently.   We had our expert tox in the gallery for Capt Stewart’s case on the issue of his sexual co-actor’s intoxication and we were able to keep almost all of her testimony that was potentially damaging out of the case.   She stayed in the lane that was medically supported and was not able to get into opinions unsupported by forensic or scientific evidence.
    The other reason to demand an expert when the Government has one is to drive up the costs to the CA and provide some leverage in plea negotiations.  It is a chip to bargain with once the Judge orders the expert consutant.   I am thinking that the Government probably regrets going after the DP in the SGT Bozicevich case, given the costs to the CAs budget by the 20 or so experts that we had assigned to the defense, most of whom were civilians, paid hourly, in light of the fasct that they couldn’t even get a unanimous verdict for premeditated murder.      

  8. Jason Grover says:


    You give good reasons to at least get the expert consultant. How do you feel on the IAC issue? Do you think it is IAC not to approach it as you do?

  9. Zachary Spilman says:

    I don’t like the idea that it could be IAC for defense not to call their own expert

    Me neither (particularly considering my current duties), which in part is why I followed this case so closely. It’s also why I noted that CAAF, in my opinion, punted on the real issue in this case, which is whether it was deficient performance for these defense counsel to fail to try to stop the trial and get an expert after the Government’s expert testimony was more damaging than expected.

    There are lots of reasons to fear the AFCCA’s finding of deficient performance by these attorneys. For starters, there’s the fact that the deficiency only came to light because a post-trial analysis by a non-testifying expert was attached to the record (by these attorneys). That shows a level of continuing diligence post-trial that is (let’s be honest here) too-often absent. Then there’s the highly-probable likelihood that any effort to stop the proceedings mid-trial to get a defense expert wouldn’t have just failed; it would have also resulted in physical injury to the defense counsel when the judge threw something at them from the bench. Also, read my argument recap, which included this synopsis:

    The case involves allegations of ineffective assistance of counsel that has the Government rushing to the defense of the Trial Defense Counsel, and the Appellate Defense Counsel struggling with the lack of power steering on the proverbial bus, as they try to drive it back and forth over their brethren at the trial level.

    And the oral argument itself included this exchange:

    Appellate Defense Counsel: Your Honor, I don’t believe that that statement in their affidavit is supported by the record-

    Judge Ryan: So they’re [trial defense counsel] lying in their affidavit.

    Appellate Defense Counsel: I’m not saying they’re lying Your Honor. I don’t believe it’s supported by the record…

    You know what expletive I screamed at my radio when I heard this.

    But most important from my perspective is that all the parties wanted the court (any court, really) to take another look at this question. The Government sought reconsideration, joined by the Defense (how often does that happen?!). Then the Government certified the issue, and the Defense petitioned for essentially the same review.

    But CAAF punted, basically calling the issue moot. Is that technically acceptable? Sure… I suppose there’s no case or controversy between the parties past finding no prejudice. But there is a controversy between the parties (who both seek further review) and the Court (that won’t give it to them). The principles of collegiality all but demand a joint petition for a writ of certiorari.

    Moreover, one could argue that CAAF’s action is an endorsement of the AFCCA’s finding of deficiency under these facts. Particularly if one is drafting a request for an expert consultant to prepare a cross-examination. Now who do you think will submit such a trial-stage request, say, tomorrow?

    On a different note:

    The other reason to demand an expert when the Government has one is to drive up the costs to the CA and provide some leverage in plea negotiations.

    Charlie, you’re one of the greats. Everyone else, don’t do this. Don’t even think about doing this.

  10. Dwight Sullivan says:

    The reason you don’t often see both the government and the defense supporting recon is because you don’t often see a party that won the case seeking reconsideration.  The government was unhappy with the manner in which it won and sought reconsideration in the hope of winning on a different ground.  The defense supported reconsideration, but on a different ground.

    Having not succeeded in obtaining reconsideration of a case it won, the government then prevailed upon the Judge Advocate General of the Air Force to file a certificate of review seeking an advisory opinion.  But for the Air Force Judge Advocate General certifying the case to CAAF, it’s highly doubtful that CAAF would have granted the defense’s petition and the case would have ended at the CCA level, with much less expenditure of resources that, in the Air Force appellate world, could be used for much better purposes that arguing about which ground the government should win on.  (And the defense’s supp didn’t raise the same issue as that presented by the certificate for review; the supp concerned Strickland’s second prong; the certified issue concerned its first.)

    The remarkable thing about this case isn’t CAAF’s choice to decide this case based on Strickland’s second prong rather than its first — a method often employed by courts deciding IAC issues – -but the government’s refusal to take “yes” for an answer.

    I can’t think of any other American justice system in which the government could WIN at an intermediate appellate court and then successfully appeal to the next appellate rung to argue that it should have won on a different basis.  Regardless of whether the cases and controversies limitation applies to CAAF as a matter of constitutional law, CAAF has generally decided to follow its limitations.  That strikes me as the right approach.

    Article 67 provides that CAAF “shall review the record in . . . all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces.”  CAAF did so.  Article 67 also provides that in a certified issue case, “action need be taken only with respect to the issues raised” by the Judge Advocate General.  Here, action was taken with respect to the issue JAG certified — CAAF said resolution of that issue was unnecessary because the case was being affirmed due to a lack of prejudice.  An old saying tells us that God answers all prayers, but sometimes the answer is no.  Similarly, sometimes CAAF’s answer to a certified issue is that there’s no need to address it.

  11. Charlie Gittins says:

    Jason:  If the Government has an expert, I think it is risky not to get an expert in the same field for the defense.  Since the law now pretty much requires the MJ to order the defense expert in the field where the G obtained expert assistance, it can’t hurt to have additional brainpower on the defense team.  Plus, in the event the G expert goes off the reservation and testifies unexpectedly, you are not left standing there with trousers around your ankles.  In the middle of a trial no MJ is going to give you any love on an expert request, although to really preserve the issue, I think you’d have to make the request and make an offer of proof of why and how the defense had been prejudiced after a showing of due diligence in the interviewing of the G witness.  And, arguably as a defense counsel, you can and should anticipate that the expert may take certain liberties with his opinions if he/she knows there is no defense expert available to call BS on them.
    Getting an IAC finding by CAAF is a pretty tough road, but not obtaining expert assistance and then getting jammed up without an expert to fall back on when the G expert goes rogue is pretty close in my view.  Because of the state of the law, the MJ pretty much has to grant a defense expert consultant request if the G has an expert.  Writing the request just isn’t that difficult that you should get caught short, IMO. 

  12. Phil Cave says:

    I think Charlie has the right of it.  Warner certainly goes a long way to establish Charlies point.  See United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005).  And, a Houser and 401/403 motion (thanks Jason) as to the need for prosecution expert testimony.  Also, you may want to litigate whether any proferred government alternate is in fact “an adequate substitute.”
    “But in this case, the Government had already secured its expert witness before the defense had an opportunity to seek its own. The Government exploited this advantage by securing one of the Air Force’s preeminent experts concerning shaken baby syndrome as its own witness. . . . One important role of expert consultants is to help counsel develop evidence.  Even if the defense-requested expert consultant would not have become an expert witness, he would have assisted the defense in evaluating, identifying, and developing evidence. Another important function of defense experts is to test and challenge the Government’s case. The denial of a defense expert with professional qualifications reasonably comparable to those of the Government’s expert interfered with this function.  
    62 M.J. at 118.

  13. Jason Grover says:

    Charlie and Phil,

    I understand the benefits of getting an expert consultant (and perhaps having him made a testifying expert) and the law supporting the defense’s right to get that expert consultant when the Government has one. And I appreciate Charlie’s litigation point of the other benefits of asking for one (keeping the government’s expert in line and driving up the costs/difficulty factor for the CA). But I still find myself asking this question, “is it IAC not to get one?” Say I have done 3 of these trials before, and watched a dozen others. I have a feel for what the SANE can and cannot say. I’ve researched it and carefully considered different avenues of cross-examination. Then the government SANE expert gets up and goes further than I anticipated. Is it really IAC for me to decide, “I think I’ll just cross the SANE and argue to the members that, in the end, the SANE didn’t really give you anything useful. The injuries may have been caused by non-consensual activity, but the SANE couldn’t rule out consensual activity.” In that case, would (or should) a court really say that decision rises to the level of IAC? It just seems crazy to me that because I didn’t seek a matching defense expert to offset the government expert. Especially in the case of a SANE as opposed to a DNA expert where the lawyer might have a hard time following the science. For a court to second-guess that decision to the point where it is IAC just struck me as extreme. There are certainly lots of benefits in asking for a defense expert in these circumstances, and it may very well be the best course, but is failure to follow that path IAC? Or more properly, does that satisfy the first prong of Strickland?

  14. Phil Cave says:

     “Then the government SANE expert gets up and goes further than I anticipated.”
    I presume that the prosecution expert, especially in sexual assault cases, will go further than anticipated.  In cases where they haven’t, or several where the decision was made not to call them at all, I have had my own expert in the gallery who has assisted me interview the expert prior to trial.  I have never had to call my own expert as a witness in those situations.

  15. Zachary Spilman says:

    It just seems crazy to me that because I didn’t seek a matching defense expert to offset the government expert. Especially in the case of a SANE as opposed to a DNA expert where the lawyer might have a hard time following the science. For a court to second-guess that decision to the point where it is IAC just struck me as extreme.

    And this is where the facts of this case really matter. The Defense bargained away their own expert in exchange for limiting the Government’s expert’s testimony to certain topics (just the anal injuries – because if she discussed the vaginal injuries, it might make the entire encounter appear non-consensual). Then the expert testified more damagingly about those topics than expected. Dutifully, the Defense cross-examined the witness (presumably highlighting the inconsistencies in her prior analyses). But the CCA found deficient the fact that:

    Nevertheless, defense counsel elected to conduct cross-examination without the benefit of expert assistance. . . . BO’s opinion illustrates that a SANE expert’s assistance would have raised the level of trial defense counsels’ performance in this case . . .

    Datavs, slip op. at 7-8 (A.F.Ct.Crim.App.) (emphasis added). It wasn’t about what the expert might have given to the members; it’s what she might have given to the counsel. And yet there’s also this key factor:

    . . . they did not want to delay the case. In her affidavit, the area defense counsel (ADC) stated she had spoken with two witnesses, . . . Because the government had apparently not spoken with either individual, the defense wanted to get to trial before they could be interviewed by the prosecution. . . . According to the senior defense counsel (SDC), the SANE expert they wanted would not be available on the agreed upon start date, necessitating a delay.

    Datavs, slip op. at 6 (A.F.Ct.Crim.App.). This tactical decision goes out the window if they ask for an expert before beginning the cross-examination.

    Now to be fair, I’m combining two separate decisions here (withdrawing the original request, and not renewing the request before the cross-examination). But the CCA went so far as to find that these attorneys were deficient before deciding that there was no prejudice. CAAF, rather than retracing those analytical steps, just affirmed the result in the opposite direction.

    And left us with these questions.