CAAF decided the Air Force case of United States v. McIntosh, 74 M.J. 294, No. 14-0685/AF (CAAFlog case page) (link to slip op.), on Wednesday, July 8, 2015. The court rejects the appellant’s claim of ineffective assistance of counsel, finding that there was a tactical reason for the appellant’s defense team to not seek the admission of sexual assault examination reports. CAAF affirms the decision of the AFCCA and the appellant’s child sexual assault convictions.

Judge Stucky writes for a unanimous court.

CAAF granted review to determine:

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, aggravated sexual abuse of a child, 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, and the charges alleged assaults from 2005 to 2010.

The prosecution’s case was based on witness testimony and not physical evidence. But there were sexual assault examinations conducted in 2007 and 2010 that indicated that the child’s “genitalia were ‘without abnormality’ (2007 SANE report) and ‘normal’ (2010 SANE report).” Slip op. at 4. The results of these examinations were not admitted into evidence by either side, and the appellant asserted on appeal that his counsel’s failure to admit them constituted ineffective assistance of counsel. The appellant based his claim on the argument that “the reports are especially exculpatory in that they showed the victim’s hymen to be intact at both times and because they ‘bookended’ the period of rape and sexual assault.” Slip op. at 4.

The Air Force CCA rejected this claim, concluding that there are reasonable explanations for the defense decision to not seek admission of the reports. In yesterday’s opinion, CAAF agrees.

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.

Judge Stucky’s analysis begins by highlighting this burden, and particularly the role of tactical decision-making:

While defense counsel would normally be expected to introduce potentially exculpatory evidence, their performance is not deficient when a tactical reason cautions against admission.

Slip op. at 4 (citations omitted). Then, writing for the unanimous court, Judge Stucky finds four tactical reasons for the defense to not introduce the examination results in this case:

First, the defense expert confirmed opinions defense counsel had formed from previous cases: the lack of abnormal findings in a sexual assault examination does not conclusively rule out the possibility that a sexual assault occurred.

Second, the primary defense theory was that the Government failed to prove the charges beyond a reasonable doubt, in part because the Government offered “absolutely no medical evidence to support the testimony of the complainant.” The Government itself bolstered this argument by not moving to admit the reports. Admitting the reports would have undermined this tactic and opened the door to cross-examination of the SANEs to the effect that an intact hymen did not preclude Appellant’s stepdaughter having been raped.

Third, the 2010 SANE report indicates that the victim suffered pain when her genitalia were touched, something that a factfinder might see as evidence of guilt.

Fourth, admission of the SANE reports would require discussion of the intrusiveness of the sexual assault exams — facts the panel could possibly hold against Appellant.

Slip op. at 5-6 (paragraphs added) (citations omitted).

Of these four reasons, the first three seem somewhat neutral. Judge Stucky appears to find that the results of the examinations are neither exculpatory nor inculpatory. That’s a debatable point, but CAAF is clearly looking for more of a smoking gun. As for the pain, it’s unclear if any witness testified (or would have testified) that a child experiencing pain during such an examination is indicative of prior sexual assault. Without such evidence, it’s hard to see how a rational panel could conclude that the mere fact of pain on examination is indicative of guilt.

However, Judge Stucky’s final reason is particularly hard to accept. CAAF holds that the mere fact that the examinations occurred is something that could support a conviction. I disagree. The examinations were the product of the allegations, and the appellant was presumed to be innocent. To say that the panel could (properly) hold the intrusiveness of the examinations against the appellant is to say that a panel could hold the mere fact of the existence of a criminal investigation against the subject of that investigation.

But this case ultimately turns on the counsel’s informed, deliberate, and tactical (even if ultimately unsuccessful) strategy of focusing on the lack of evidence, and the decision to not introduce evidence of the examinations is not unreasonable in light of that strategy.

Case Links:
AFCCA oral argument audio
AFCCA opinion
Appellant’s brief
Government’s brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

18 Responses to “Opinion Analysis: Tactics, not ineffectiveness, in United States v. McIntosh, No. 14-0685/AF”

  1. LLOD says:

    I disagree that a victim submitting to the exam is not relevant evidence the assaults happened. It is common practice to elicit testimony from SANE/SAFE nurses about just how intrusive the process is. The TC then argues that only a true victim would subject themselves to such a procedure. You may not personally find that to be relevant, but a reasonable person could. It’s far from a smoking gun, but it’s fair comment. The DC is welcome to counter that a liar might be willing to go that far to maintain their allegation. Again, fair comment.

  2. Zachary D Spilman says:

    Two issues LLOD.

    First, that argument goes only to the credibility of the victim. The fact that the victim submitted to an intrusive examination doesn’t make it more likely that the assault occurred. It only might make it more likely that the victim is being truthful when she persisted in her story despite the fact that it led to additional pain. Put differently, the fair argument is only that if she were lying, then she wouldn’t have taken it that far.  

    Second, according to the AFCCA’s opinion, the victim testified that the first assault occurred in the summer of 2006, when she was about eight years old, and the last occurred on 5 April 2010. I think it too much of a reach to say that a child that young subjected herself to the procedure.

    Judge Stucky’s opinion about the intrusiveness of the examinations is that it is “facts the panel could possibly hold against Appellant.” That strikes me as plainly wrong. The intrusiveness might bolster the victim, and may well be an aggravating factor in sentencing, but it doesn’t fairly raise an inference of guilt.

  3. stewie says:

    But in a case that turns solely on witness/victim statements, then saying it only goes to the credibility of the victim is kind of missing the point. Yes, the fact that the victim submitted to an intrusive examination does make it more likely it occurred…to some people. Maybe not you, maybe not me, maybe not even logically so, but to many folks sitting on a panel it does. That’s why the argument “she wouldn’t have gone through this if something hadn’t happened to her” gets played so often. If it wasn’t at least somewhat effective, folks would stop trying to make that point.
    I think Judge Stucky, and boy I rarely type this, is absolutely correct on the potential of that evidence and why a DC might choose not to enter it, particularly if they think (apparently wrongly in this case) that they can win it based on arguing no physical evidence.
    Now, with 1 percent knowledge of the case (i.e. facts from the opinion), I’d lean towards getting into the fact that there was no damage to the hymen because I’d feel like the lack of damage to the hymen (assuming this was a penetrative act claimed) would significantly outweigh any negative stuff that might come back.
    But as we all know, IAC isn’t about what a good attorney would do, or even what a mediocre one would do. It’s about grossly deficient performance, and thus the opinion has to be viewed through that lens. I don’t think CAAF is saying this is good practice, they are saying it doesn’t reach the high burden of IAC.

  4. Not Zach says:

    What does LLOD mean?
    I put it into Google and well, the results are NSFW.

  5. Zachary D Spilman says:

    LLOD is the pseudonym used for the first comment. I have no idea what it stands for.

  6. stewie says:

    Ladies Love Olive Drab?
    Only thing I could come up with.

  7. DCGoneGalt says:

    In my oh-so-popular high school role-playing video game days LLOD stood for “last line of defense”.

  8. (Former) ArmyTC says:

    Lower Limit of Detection? Lovely Lady of the Day (thanks twitter for that one)? Mispelling of “lloyd”?

  9. k fischer says:

    I believe its an acronym from a Yogi Berra quote: “Live Long or Die.”

  10. k fischer says:

    And, if the fact that she underwent a SAE is relevant to bolster credibility and survives a 403 analysis, then the 403 analysis contained within 412 should be eviscerated, as well, when the Defense can show a motive to fabricate.

  11. Zachary D Spilman says:

    In this case I think you’re right about 403 k fischer. The fact that a child was subjected to a sexual assault examination (and a painful one at that) is more prejudicial than it is probative of the child’s credibility.

    But I don’t think that’s necessarily the case in every situation. 

  12. stewie says:

    Why would it be in this case if not necessarily in all cases? (For the record, I believe it’s just probative enough in most cases personally to break the 403 barrier).

  13. Advocaat says:

    Concur w/ stewie on all counts.  Separately, CAAF has been ineffective with its presentation of the facts in this case and in Nettles.  As fun as it is to dig through the appellate briefs to get a fuller picture of events, the court needs to do a much better job writing comprehensive opinions.

  14. Dew_Process says:

    This is one of those cases . . . i.e., “bad facts make bad law;” where some of the key facts simply are missing from the Court’s opinion. Why, e.g., was it a “reasonable” tactical decision under the circumstances, for the DC to not admit either of the SANE examination results? Surely the first one, done right after mom walked in on them was highly relevant if there was a penetration allegation.  While there are some doctors who will testify that over time, hymenal injuries will heal and become virtually undetectable [see link HERE ], that’s not going to happen in 24 hours even if that premise is correct. A properly done exam – and most hospitals and some states have specific SA protocols (as does the military) – should normally consist of photographic evidence from a Colposcope – again something not discussed in the opinion.
    Would offering the first SANE’s findings have opened the door to the second? We don’t know, but if it didn’t then there’s a separate problem imho. The British system of criminal appellate procedure allows for a reversal if there is a basis for the appellate court to consider that a guilty verdict is “unsafe” based upon the totality of the circumstances.  See THIS.  The second SANE examination results were arguably less relevant because they did not timely occur – per the decision – after an reported incidence.
    One other point is that from discussions I’ve had with both Sexual Assault Forensic Examiners [SAFE’s = MD’s] and SANE’s, while intrusive, a properly conducted SA examination, absent significant genital trauma, should not be painful if done correctly. Indeed, part of their training consists of learning how to not cause pain while conducting the examination and evaluation.
    I just saw Advocaat’s comments and obviously we’re thinking along the same lines.  I suspect that filing this case under the heading of “Judicial Anomalies” is the best we can do, unless some reader has more factual insight into the specifics of this case.

  15. Charlotte Bass says:

    LOL-   Please argue that the SANE exam “should not be painful if done correctly” in front of the female members of your panel who have all actually experienced having a speculum put inside them.

  16. Dew_Process says:

    @ CB:  Two things:
    1)  That’s why the defense calls a female SAFE to testify to that; and
    2)  In this particular case, once the SANE noticed the intact hymen with no evidence of trauma, bruising, bleeding, tearing, edema, etc., there would be no medical / forensic reason to use a speculum, in fact, many SANE training programs teach that such is contraindicated.

  17. Charlotte Bass says:

    DP- in McIntosh, the first SANE exam noted no trauma to the cervix.    A speculum must have been used to determine that.   You can’t see the cervix without a speculum.   
    Unless you are dealing with a young child, there’s no guarantee that an invasive and quite possibly painful,  exam will not be needed to evaluate potential trauma to the cervix or to take a DNA swab from the cervix.   
    Finally, in my experience, the SANEs who conduct the exams in most military cases are not very well trained and often do not follow protocol.  So who knows what actually they end up doing during the exam.   I still believe that your average woman is going to laugh at you if you (or your female SANE) get up and start talking about how a gynecological exam “shouldn’t be painful.”

  18. Phil Cave says:

    @DP.  What CB said on this one. Plus, by the time you get through explaining all of that to the members you’ve reinforced any right or wrong perceptions that the SA exam is more than uncomfortable.
    People who make false accusations will go through the SA exam.  That’s part of the mental disorder.  People with factitious disorder and Munchausen syndrome feign, exaggerate, or actually self-induce illnesses.  Which means going through a SA exam is quite fine.