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.