If you’ve never heard of the forensic chemist named Phillip Mills, whose misconduct while employed by the U.S. Army Criminal Investigation Laboratory (USACIL) caused a massive and continuing scandal, you have a lot of catching up to do. Start by reading CAAF’s opinion in United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011), particularly pages 5-8 of the slip opinion. Then read most of our coverage at this link.
And if you’re a recent graduate of a judge advocate MOS-producing service school who is just now learning about Mr. Mills for the first time, you need to have a serious conversation with your supervisor about the locations of the skeletons.
But here comes Mr. Doughty, who pleaded guilty at a special court-martial in 1998 to two specification of indecent assault in violation of Article 134, and was sentenced to confinement for three months, forfeiture of $600 pay per month for three months, reduction to pay grade E-1, and a bad-conduct discharge. His case was affirmed by the NMCCA in 1999 and he was discharged. But over a decade later he petitioned for a writ of coram nobis, alleging that his pleas were improvident (note: coram nobis is a method of post-conviction collateral attack on the proceedings that is the functional equivalent of habeas corpus, but is used where the petitioner is not imprisoned).
A three-judge panel of the NMCCA denies the writ petition in an unpublished opinion dated June 27, 2013, and authored by Senior Judge Payton-O’Brien.
The facts of the case involve a party where Petitioner – who was in the Navy – got exceptionally drunk after consuming “14-15 beers, [and] 3 Jack Daniels mixed drinks” (slip op. at 3), and then slept in his bed with three other sailors (at least one of whom was female). The female “was awakened [during the night] while being sexually assaulted. Her attacker, who was behind her on the bed, pulled her pants down, digitally penetrated her anus, masturbated himself, and then touched her buttocks, back, shoulder and hair. The victim was scared and thus never turned around to see who was touching her.” Slip op. at 3. The incident was reported, and Petitioner was interrogated and denied culpability. After he was confronted with DNA evidence, he continued to deny that he committed the assault. But he eventually pleaded guilty at a special court-martial, pursuant to a pretrial agreement. Notably:
During his providence inquiry, the petitioner acknowledged that he had read “all of the reports” and that while he did not remember the incident, he believed there was enough evidence against him to cause him to believe he was guilty of the charged offenses. Record at 15. The petitioner indicated to the military judge that he had initially believed he was innocent, but after the DNA tests results returned from the lab, he “could not deny . . . saying that I did it.” Id. at 16. The military judge appropriately inquired of the petitioner what particular items of evidence factored into his belief that he was guilty. The petitioner indicated that the NCIS investigation and, more importantly, the victim’s statement factored into his decision to plead guilty.
Slip op. at 4. The petition is largely based on Petitioner’s argument that the DNA report was “the basis of his plea,” and that Mr. Mills’ misconduct creates a substantial basis to question that plea. Id. The CCA ordered a DuBay hearing, and Senior Judge Payton-O’Brien dedicates a few pages of the opinion to discussing the post-trial events including the DuBay. Slip op. at 5-7. But ultimately: “The question we must answer is whether Mr. Mills’ misconduct at USACIL renders the appellant’s pleas improvident. We hold that it does not.” Slip op. at 9.
The court also rejects a claim of ineffective assistance of counsel that was based on the Trial Defense Counsel’s “reliance on Mr. Mills’ DNA report, his failure to question Mr. Mills “on the record,” and his failure to seek a second opinion of the DNA report. He essentially argues that if his counsel had registered a challenge to Mr. Mills or his report, his counsel would have learned the report was flawed and Mr. Mills’ misconduct would have surfaced, and thus he would have advised the petitioner to plead not guilty.” Slip op. at 13.