ACCA sets aside LWOP sentence in child rape case due to ineffective assistance of civilian and military defense counsel during sentencing
In a memorandum opinion dated July 23, 2013, in United States v. Sickels, No. 20110110, a three-judge panel of the Army CCA sets aside an approved sentence of life without the possibility of parole (LWOP) that was adjudged by a panel of officer and enlisted members after they convicted Appellant, contrary to his pleas, of various sexual offenses related to his “rape, sodomy, and sexual assault of his two daughters.” Slip op. at 2.
“Upon conviction . . . Appellant offered nothing in extenuation and mitigation. Neither witness testimony nor documentary evidence nor a sworn or unsworn statement from Appellant was presented to the panel.” Slip op. at 2. Trial counsel argued for a parole-eligible sentence of 70 years. Defense counsel argued for 25 years. The members awarded the max.
The opinion notes that Appellant was represented by civilian and military defense counsel, with civilian defense counsel as lead counsel in the case for all but the post-trial phase. However, the counsel are not identified by name or initials in the opinion.
The facts are undisputed:
The military defense counsel admits that he did no investigation on sentencing matters whatsoever leaving that to the civilian defense counsel upon his instruction. The civilian defense counsel states that his decision against calling any “good soldier” witnesses was based on his review of a separation board transcript of such witnesses who testified on behalf of appellant at that board and his assessment that “good soldier” witnesses would not serve as valuable mitigating evidence in appellant’s case and might rather “aggravate the sentence.” Civilian defense counsel also concluded that it would be injurious to appellant’s sentencing case to expose such witnesses to cross-examination based on appellant’s offenses and bad acts. However, civilian defense counsel never actually interviewed or spoke to any potential witnesses from appellant’s unit nor apparently, did counsel collect or review any documentary evidence of appellant’s service. He states that he did not call any family members because appellant did not cooperate in that respect or offer any family information indicative of any matter worthy of presentation in extenuation and mitigation. Also, upon review of the potential family testimony, civilian defense counsel concludes he would have decided against its presentation in any event.
Slip op. at 3. The CCA concludes:
The record of trial and affidavits submitted by appellant here establish an undisputed fact that a minimal amount of investigation into appellant’s service history, including interview of soldiers who served with appellant in Iraq, would permit an informed decision on the matter. Defense counsels’ failure to investigate and interview such potential witnesses falls below the minimum standard of professional representation expected and required to ensure proper representation of accused soldiers. Under the circumstances of this case, defense counsels’ failure to present anything in extenuation and mitigation was deficient and the result of deficient preparation for the sentencing hearing that has resulted in an unreliable sentence including confinement for life without the eligibility of parole.
Slip op. at 4. The CCA considers the possibility of reassessing the sentence, but rejects it:
Because of this breakdown in the adversarial system, necessary to ensure a reliable sentence, and despite the seriousness of appellant’s offenses, we will therefore order a rehearing on sentence, where appellant will enjoy the opportunity to present a case in extenuation and mitigation with new counsel.
Slip op. at 4-5 (emphasis added).