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:
WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION.
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.