CAAF will hear oral argument in the Air Force case of United States v. McIntosh, No. 14-0685/AF (CAAFlog case page), on Wednesday, April 29, 2015, at 9 a.m. The court granted review of a single issue:
Whether Appellant received ineffective assistance when defense counsel failed to introduce evidence which strongly corroborated the defense theory that the allegations in this case were false.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed members with enlisted representation, of rape of a child, who had attained the age of 12 years but had not attained the age of 16 years on divers occasions, aggravated sexual abuse of a child on divers occasions, assault with the intent to commit rape, and of communicating a threat, in violation of Articles 120 and 134. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The child subject of the allegations was Appellant step-daughter, BH, and the offenses alleged assaults from 2005 to 2010.
On appeal at the AFCCA, Appellant asserted that his military and civilian trial defense counsel were inefficient for various reasons, including that they failed to introduce evidence from sexual assault examinations conducted in 2007 and 2010 that indicated that the alleged victim’s “genitalia was found to be without injury and her hymen was found to be intact.” App. Br. at 3. When an appellant alleges that he suffered from ineffective assistance of counsel (IAC) 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 McIntosh, the Air Force court rejected all of Appellant’s bases for claiming IAC, finding that “there are reasonable explanations for the counsel’s advice and their level of advocacy on the appellant’s behalf was commiserate with that expected of defense counsel.” United States v. McIntosh, No. 37977, slip op. at 19 (A.F. Ct. Crim. App. Jan 17, 2014) (link to slip op.).
CAAF then granted review whether counsel’s failure to introduce evidence from the 2007 and 2010 examinations was IAC.
Appellant’s brief asserts that:
The defense theory in this case was that CD, Appellant’s ex-wife, made up the allegations to secure the custody of their three boys. The defense had independent, scientific evidence that these allegations were false. Specifically, the defense had two independent SANE examinations of BH conducted in 2007 and 2010. Despite allegations of over four (4) years of violent vaginal and anal rape of a very young child, the two independent SANE reports showed no injuries, no tearing, no scarring, no bruising, and a completely intact hymen. Yet, even though the defense had this evidence that strongly corroborated the defense argument that the allegations were fabricated, the defense did not present any evidence of BH’s SANE examinations.
App. Br. at 8-9. Appellant’s counsel provided affidavits to explain this decision, claiming that it “was a tactical decision which allowed them to argue that the government failed to produce any medical evidence of sexual assaults and suggest[ing] that admitting the evidence would have prevented that argument.” App. Br. at 9. Appellant’s brief rejects their explanation with the assertion that “actual evidence trumps mere argument, absent compelling tactical considerations that were not present in Appellant’s case.” Slip op. at 10. The brief asserts prejudice in the “weakness of [the] Government’s evidence,” including that:
the government’s case against Appellant was largely dependent upon the credibility of witness testimony from BH [the child], CD [the mother], and VJ [a friend of the child]. This testimony was repeatedly inconsistent, both with prior statements made by the witnesses themselves and with the testimony of other witnesses. Further, this witness testimony was at times simply unbelievable in the witness descriptions of the alleged sexual assaults, BH’s reactions, CD’s reactions, and VJ’s reaction.
App. Br. at 15.
The affidavits from Appellant’s trial defense counsel also asserted that withholding this evidence was in Appellant’s best interest “because of the possibility that the DNA evidence would be admitted.” App. Br. at 9. Appellant’s brief responds that “the only foreign DNA (i.e., not BH’s) found in any of the samples was located on the inside crotch of BH’s underwear. . . . Further, the DNA evidence that was found in BH’s underwear could not be confirmed as semen, and instead could have been transferred to the underwear.” App. Br. at 16-17.
Appellant’s brief concludes with discussion of the closing arguments on the merits:
At trial, the lack of any evidence of medical findings consistent with sexual assault was a consistent issue in trial and defense counsel’s closing arguments. During GM’s closing argument, he repeatedly noted that the government had not presented any medical evidence that a sexual assault had occurred. During her rebuttal argument, trial counsel responded to GM’s argument as follows:
Where is the trauma, where is the medical evidence, where is the DNA in her vagina? These are the questions and, as you know, this little girl submitted to a sex assault kit. She went and she saw a nurse and the nurse took swabs, and the nurse took her underwear, and the nurse opened her up and looked at her. And when this kit went forward to the science lab, and when the report went forward to law enforcement, this case continued. This wasn’t a case where the medical evidence didn’t exist, or the DNA didn’t exist, in order for substantiation of this little girl’s version of horrific events. This is a case where all of that existed and that’s why we’re here.
App. Br. at 18 (citations to record and emphasis omitted). Appellant’s brief calls the trial counsel’s argument “disingenuous” and “misleading,” but does not discuss whether the trial defense team objected to the argument (presumably they did not).
The Government’s response asserts that “there were reasonable tactical justifications for defense counsel’s decision to forgo admission of this evidence.” Gov’t Br. at 9. The Government’s brief appears to offer only two such justifications. First, the brief discusses the defense cross-examination of the Government’s DNA expert, and the fact that he could not confirm whether the child’s underwear was washed before it was sent for DNA analysis. The brief claims that “had the SANE reports been admitted, the prosecution could easily rehabilitate [the expert] in rebuttal by pointing out the 2007 SANE report, which specifically stated that BH’s ‘underpants were collected, sealed, and placed in PERK kit.'” Gov’t Br. at 11 (marks omitted).
Second, the Government asserts that:
[A] great boon befell the defense team when the prosecution decided not to introduce the reports. With no medical evidence from BH brought by the government bearing on the charged assaults, trial defense counsel had an affirmative tactical reason not to pursue introduction of the evidence, as its absence allowed him to argue to the members that there was no medical evidence because there had been no assault. (JA at 359.) GM followed this precise strategy, arguing vehemently during closing argument that the government had failed to present any medical evidence during its case-in-chief.
Gov’t Br. at 12. Ultimately, the Government’s brief asserts that:
[W]hile it is true that mere argument can be rebutted by argument, evidence can be more effectively rebutted by contrary evidence. That is, while the prosecution can and did argue the lack of medical evidence does not negate a sexual assault, this argument would have been an order of magnitude more powerful had the government been able to impeach the reports during cross-examination or during its rebuttal case.
GM’s trial strategy was to point out the lack of any corroborating evidence, not just the lack of medical evidence. (JA at 359.) The prosecution’s failure to admit the reports, therefore, allowed the defense to argue that the government’s proof (other than the DNA evidence), consisted only of witness testimony. Admitting the reports during the defense case-inchief could have drawn attention away from that theory, and could have led to a “battle of the experts” over whether the lack of trauma rules out a sexual assault. Given that it is the prosecution’s burden to prove the allegations beyond a reasonable doubt, the defense was wise to argue the lack of any medical evidence (which could not be rebutted with evidence), rather than admitting the reports and exposing them to impeachment.
Gov’t Br. at 18-19 (emphases in original). A footnote adds that:
Because the members knew that BH had undergone two SANE examinations (see, e.g., JA at 239), the only conclusion that could be drawn from the prosecution’s failure to admit those reports was that the reports both indicated no evidence of a sexual assault.
Gov’t Br. at 19 n.7. Yet the trial counsel seemingly asserted the precise opposite in rebuttal closing argument. The Government’s brief gives this argument only the briefest mention:
As a final resort, Appellant argues that trial counsel’s “rebuttal argument to the members regarding medical evidence was prejudicial” and that “trial counsel not only argued facts not in evidence, she knowingly argued facts not in existence.” (App. Br. at 18-19.) Unfortunately for Appellant, he cannot bootstrap a prosecutorial misconduct/improper argument issue onto the granted issue in this case. Appellant’s argument falls well outside of the granted issue and should, thus, be discarded by this Court.
Gov’t Br. at 26. A footnote adds:
Even if this Court considers Appellant’s argument, however, trial counsel argued that “medical evidence” existed because trial counsel asserted that the DNA evidence constituted “medical evidence.” (JA at 320-21.)
Gov’t Br. at 26 n.12. Notably, the trial counsel distinguished medical evidence from DNA with the disjunctive statement “where the medical evidence didn’t exist, or the DNA didn’t exist. . .” (emphasis added). CAAF may see the closing argument as outside the scope of the granted issue, but the Government seems intent on rewriting the record of that argument and that will likely invite attention from the bench during oral argument.
On the question of prejudice, the Government’s brief asserts that “there is simply no reason to believe that, had his defense team moved the two SANE reports into evidence, the outcome of the trial would have been any more favorable to Appellant. Indeed, quite the opposite is likely.” Gov’t Br. at 21. While there’s not guarantee that the medical evidence would have prevented a conviction, I think it’s wishful (bordering on magical) thinking to claim that the introduction of medical examinations that found no injury, with the caveat that the lack of injury does not prove the lack of assault, would make a conviction more likely.
CAAF may well affirm Appellant’s convictions on the basis that his defense counsel merely made a tactical decision that he now wishes they hadn’t made, but I doubt that it will endorse the Government’s view of the evidentiary value of the medical examinations.