On Tuesday CAAF granted review in this Army case:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:


Briefs will be filed under Rule 25.

A decision issued by the CCA in 2018 (discussed after the jump) is available here.

Major (O-4) Scott pleaded guilty to adultery and disobeying an order. Both offenses arose out of Scott’s sexual relationship with the wife of an enlisted soldier while the soldier was deployed to Afghanistan. A military judge sentenced Scott to restriction for 30 days, forfeiture of $3,000 pay per month, and a dismissal. A pretrial agreement had no effect on the sentence.

On appeal, Scott claimed that the dismissal is an inappropriately severe punishment because he had more than 20 years of military service (and so was eligible for regular retirement). Regular retirement is – as I’ve discussed on multiple occasions – not retirement in the ordinary sense of the word, but rather is merely a change in status, and federal law subjects regular retirees (including those retired for disability) to involuntary mobilization at any time. Perhaps due to that, a three-judge panel of the Army CCA rejected Scott’s argument that a dismissal is an inappropriate sentence for his offenses, with Judge Wolfe writing:

One must think hard to conjure a worse case of adultery than when a field grade officer knowingly has a long-term sexual relationship with the spouse of an enlisted soldier who is deployed in combat, and then egregiously disobeys direct orders to end the relationship. Appellant’s sentence to dismissal is appropriate.

Slip op. at 5.

But Scott also claimed that his military defense counsel (two captains identified only by their initials) were ineffective because they did not recognize that a dismissal was a likely punishment for Scott’s offenses. Rather:

Reading their affidavits, one cannot help but conclude that counsel prepared for the court-martial under the grossly mistaken belief that a dismissal was not a plausible outcome.

Slip op. at 5. As a result, Scott’s defense counsel did not introduce any exhibits in sentencing and they called only three local witnesses (who “all gave a middling assessment of [Scott]’s performance”). Slip op. at 6. The prosecution, however:

came to trial loaded for bear. The government maintained no disillusions as to whether the sentence should include a dismissal. The government’s sentencing argument asked for de minimus confinement (a fraction of the 119 days authorized by the pretrial agreement) and focused entirely on why MAJ Scott should be dismissed from the Army.

Slip op. at 7.

The result was an adjudged dismissal. But then, in some ways, it got worse. Scott’s defense counsel made a massive post-trial submission to the convening authority: “hundreds of pages of documents . . . . Several letters of support . . . . Medical documents . . . Major Scott’s post-trial submission lands on our desks with twice the thickness of the trial transcript and all exhibits combined.” Slip op. at 7. But it was for naught because “the convening authority was not empowered to set aside appellant’s dismissal under Article 60, UCMJ.” Slip op. at 7.

An appellant who alleges that he suffered from ineffective assistance of counsel (IAC) at trial 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. 2010) (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.

The CCA ordered affidavits from Scott’s defense counsel to explain their decisions in the case. Both counsel responded and they were generally critical of their own performance. The CCA, however, did not make an explicit finding of constitutionally-deficient performance. Rather, it “agree[d] with the spirit behind CPT JH and CPT MD’s self-evaluation of their performance contained in their respective affidavits.” Slip op. at 11. It then turned to the question of prejudice, meaning whether there is a reasonable likelihood that a dismissal would not have been adjudged had the defense done a better job.

The CCA couldn’t answer that question, however, because it found that the failure of the defense to call witnesses from Scott’s prior service – including specifically-identified witnesses familiar with Scott’s combat service – required further factfinding. Accordingly, it ordered a Dubay hearing. Unfortunately, the CCA summarily affirmed the findings and sentence after the DuBay in a one page order (available here) that provides no additional information.

16 Responses to “CAAF grants review of claim of ineffective assistance of counsel during sentencing”

  1. A Random JAG says:

    The Army CCA’s habit of summarily affirming non-Grostefon errors is baffling to me.  It doesn’t help that CAAF grants so many issues on these summary opinions.

  2. Tami a/k/a Princess Leia says:

    A worse case?  Poppa Panda Sexy Pants for one.  The colonel who married his Iraqi squeeze while still married to his first wife, using his new marriage to funnel Afghan contracts to her dad for another.

  3. Nathan Freeburg says:

    Insofar as this was something like a 2.5MM fine it certainly appears to be an incredibly severe sentence.  Of course, it flabbergasts me when someone has millions of dollars in retirement benefits on the line and they don’t hire experienced counsel.

  4. Michael Lowrey says:

    Nathan — Very true, but IAC is the unwanted gift that keeps giving. Military defense counsel didn’t think a dismissal was a real possibility, so the accused won’t have had any reason to think his retirement benefits were on the line, and thus less of a reason to hire more experience counsel.

  5. Philip D. Cave says:

    1. When an accused is “knocking at retirement’s door”, the impact of a punitive discharge is not irrelevant or collateral.  There were two dissents in this case.   United States v Stargell, 49 M.J. 92 (C.A.A.F. 1998).
    2. Our superior court has recognized “‘the special distinction’ of combat service” in determining an appropriate sentence. Seal, 38 M.J. 659 (citing United States v. Demerse, 37 M.J. 488, 493 (C.M.A. 1993)). Seal is an ACCA case from 1993.
    Put those cases in your trial notebook.
    The underlying conduct is disturbing. Although for those who remember, Kelly Flynn didn’t go to a trial for similar misconduct due to able representation by Frank Spinner.
    Troubling is also the decision (as I read the ACCA opinion) by the defense to call the three witnesses at all. Had the defense not called those witnesses I wouldn’t say that decision was IAC. Remember the questions you must ask–what is the value added and how can information presented be devalued by the other party.

  6. Tami a/k/a Princess Leia says:

    To follow on with Phil:
    3.  Know your judge!  A dismissal IS on the table with COL Henricks, and these ARE really bad facts.  But I also think that if DC had prepped their case, he probably would’ve taken other action.  That means putting in evidence of the dollar value of lost retirement and other benefits, combat service, etc.

  7. anon81 says:

    I’m sorry, but why are they taking a deal for a retirement-eligible officer without dismissal protection? That alone seems IAC enough to me. As Tami said, knowing your judge (or asking your superiors about your judge) should have clued them in that a dismissal was a very real likelihood, and if the government is unwilling to give you that protection, then I think it’s still a safer play to get members for sentencing. Litigate to mitigate!

  8. slyjackalope says:

    With that set of facts, hell would freeze over before any CG would take the dismissal off of the table.  Also, contrary to everyone’s assertion that he should have hired civilian counsel, TDS is more than capable of handling these cases.  Rather, he should have hired a defense investigator and additional paralegal support for the military defense counsel.

  9. Philip D. Cave says:

    A naked plea with members for sentencing? Not in this case. The members would have hammered him, especially after hearing the three defense witnesses.
    A slow guilty plea? Ah, no.
    A deal? Yes. But I’m pretty liberal, but as an SJA no way would I recommend the CA accept a deal with dismissal protection.
    Back in 97/98 when the MCM was changed to add the list of factors justifying prosecution it was a deliberate choice to narrow the types of cases to those having a direct or likely direct on good order and discipline. It took a LOT of persuasion to get BG Hess (then SJA to the Commandant) to accept any narrowing of the adultery provisions. This was in response to the Gen Ralston who lost appointment to CJCS because of a 10 year old adultery. Some of us nicknamed the changes the Ralston Amendment.
    https://en.wikipedia.org/wiki/Kelly_Flinn. As you can imagine there was quite a bit of talk that if she had been a man she’d have gone to trial.

  10. stewie says:

    I really hate that we charge adultery generally. 90 percent of the time it’s a BS charge on a charge sheet.
    This is the one exception. An Officer playing “Jody” with a deployed Enlisted Soldier’s wife? Are you kidding me?!
    I mean this does look a lot like poor DC work, so I don’t like that. A kick was very likely here, and it would have taken a combination of heavy E&M and a whole lot of sword falling by the MAJ to have a shot here. Looks like that didn’t happen, but I’m not sure even with that, it was a heavy shot of a different sentence.
    And this isn’t a you should have hired experienced counsel issue…plenty of TDS counsel would have done this up right…these two just did a poor job, and apparently either didn’t seek out (more likely) or didn’t get great backup support from their leadership.
    Then again, I’ve seen an attempted to catch a predator case with an O5(P) that was BARELY a dismissal so who knows?
    I’m not crying any tears for this guy, but that DC work was shoddy as heck, and I hate to see it.

  11. stewie says:

    Oh man, just read the facts…wow…this guy was a scumbag. Calling her a whore, verbally attacking the husband, insinuating to her that her husband might have died in combat, good grief.
    And even with all that, if he just follows the order, he MAYBE gets a GOMOR and retires.
    That lack of self control, the viciousness of his conduct…he deserved to lose his retirement.

  12. Tami a/k/a Princess Leia says:

    I made a mistake–COL Henricks was not the MJ on this case, he was the SJA.  Sean Mangan was the MJ.

  13. former af_dc says:

    Stewie, I’m a defense hack but I completely agree in this case. Those facts are truly terrible. I think most of the time adultery specs are misused because they get tacked on to other, more serious specs without regard to whether the conduct standing alone is worth prosecuting. But that was definitely not the case here. This is truly vile behavior. He deserved the dismissal. 

  14. Defense Hack says:

    I’m a defense hack, too, yet I am surprised how the patriarchy has diminished this female spouse’s agency so much so that they have to convict an Officer and dismiss him because women apparently have to be protected from their own sexual urges.  Whores come in all shapes, sizes, and genders, Stewie, and he pretty much nailed it.  If a married person sleeps with another person consensual who is not their spouse, then they fit the definition of a whore, be it male or female.  I would imagine that MAJ Scott was not the first one to take her for a spin, pun intended.  
    Her husband should be blaming her, not him, particularly considering that MAJ Scott did not know she was married for a few months after the affair started. Anybody catch that little snippet?  I agree he should have walked away, in the very least to have dignity for himself, but this was a case where DC could have called in witnesses from everywhere and threatened to plead naked to leverage protection from a dismissal.  They didn’t.  
    They assumed the MJ wouldn’t give him a kick because he was retirement eligible and they put on a sentencing case as if they were defending a PFC who went AWOL for six months who doesn’t care about a kick, they just don’t want to go to jail.  Is MAJ Scott a Jody?  Yes.  But did he deserve to have a robust sentencing case to save his military retirement?  Yes, and his DC didn’t provide that.  

  15. Perry says:

    I just came out of an SDC billet. It was standard practice in my jurisdiction for my DC to introduce an accounting from the US Army Audit Agency for any client facing the possibility of a kick who had more than 15 years of qualifying service (the cutoff for USAAA to give you an accounting). I cannot tell you how many times I attribute retention or much reduced confinement sentences to that piece of paper that tells the factfinder this Soldier stands to lose 1+ million dollars if he/she is kicked. It was so easy to do there is absolutely zero excuse for not seeking it and introducing it. In my experience the folks at USAAA will bend over backward to get you what you need if time is of the essence.

  16. stewie says:

    Do I reply to a ridiculous post? Nah, I’ll just reply to Perry in saying absolutely agree. Getting that paper is critical and very very easy to do. Having said that, I know for a fact that the MJ in this case knows what this guy was losing. He knew what that paper would roughly say. And he dismissed him anyways. And he’s not a super government friendly MJ unless he’s completely changed (been awhile, anything is possible). The appellant deserved better representation, and the courts better make sure that’s investigated (and I hope TDS asks where did we screw up on this one). But the reality is this is about as extreme of an adultery case as you are going to get. An Officer sleeping with an Enlisted Soldier’s wife, harassing the SOLDIER (Defense Hack) and the wife, ignoring an order to stop, implying to the wife that her deployed husband was killed in action. The other reality is that this was not a stellar Officer. He had mediocre OERs and was an O4 retiring and even with some prior service that’s probably because they were passed over. Not ever passed over Major is a mediocre officer, some good ones get missed, but this one apparently was, and his judgment was certainly piss-poor.
    There wasn’t going to be a panel or judge that was going to retain this guy because there was nothing that said let this guy retire and earn a retirement. Can’t follow orders, doesn’t care about the sacred duty of looking out for Soldiers, does something as heinous as letting a wife think her deployed husband was dead. He got what he deserved.