With a recent opinion in United States v. Roberts, No. 20150023 (A. Ct. Crim. App. Dec. 11, 2019) (link to slip op.), a three-judge panel of the Army CCA rejects a claim of ineffective assistance of counsel with the conclusion that “defense counsel faced the Mount Everest of uphill battles to negate the government’s [evidence].” Slip op. at 7-8.

Way back in 2015, Chief Warrant Officer 3 Roberts was convicted of sexual assault and indecent visual recording for an encounter with the wife of another soldier after two trials. Roberts was actually tried twice, with the first trial ending in a mistrial (after a prosecution witness improperly testified about Roberts’ invocation of his rights). The second trial made it to sentencing, and Roberts was sentenced to confinement for three years, total forfeitures, a reprimand, and to be dismissed. But the government was unable to provide a verbatim transcript of the first trial, which was a problem because multiple motions (including a to dismiss based on prosecutorial misconduct) were litigated during the first trial, and the parties relied upon the record of that litigation during the second trial. As a result, in 2018 the Army CCA found the record incomplete and it returned the case to the convening authority to either order a rehearing or approve a sentence no greater than what could be adjudged at a special court-martial. See United States v. Davenport, 73 M.J. 373 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

The convening authority decided against a rehearing, resulting in a huge reduction of the sentence. Where Roberts once was sentenced to confinement for three years and a dismissal, he ended up with just a reprimand, forfeiture of $3,483 pay per month for six months, and confinement for six months. Unfortunately for Roberts, he almost certainly served all of the three years of adjudged confinement before his sentenced was reduced. But fortunately for Roberts, since the sentence as ultimately approved does not include a dismissal, he should receive back pay and allowances for the excess time served (easily a six-figure payment).

Yet the case returned to the Army CCA (because jurisdiction continued from the first approved sentence; see Boudreaux v. United States Navy-Marine Corps Court of Military Review, 28 M.J. 181, 182 (C.M.A. 1989)), where Roberts claimed that his defense counsel were ineffective because they failed to file a motion to compel an expert in psychology or toxicology during the second trial (though they had filed such a motion in the first trial). The basis for the claim was that the alleged victim had taken Xanax (a sedative) prior to the alleged assault, and an expert could have provided “testimony
regarding forensic psychiatry [and] the possible effects of Xanax, [such] as blacking out, passing out and sleep walking.” Slip op. at 5 (modifications in original).

But the claim faced a big hurdle: Roberts’ conviction of indecent visual recording was based on the discovery of three sexually explicit pictures of the alleged victim, taken at the time of the assault, “with her eyes closed and her body in a catatonic state.” Slip op. at 6. Those pictures were used to devastating effect by the prosecution, which argued in closing: “”[w]hat better evidence [than the photographs] do you have to prove [appellant is] guilty?” Slip op. at 6 (modifications in original).

Considering that and writing for a three-judge panel of the CCA, Judge Fleming finds that Roberts’ defense counsel made a reasonable strategic choice to forego the expert and instead claim that the Xanax had no effect and that the encounter was consensual:

defense counsel employed a tactically-sound theory-completely divergent from the government’s theory-that SB was not affected at all by the Xanax but she instead engaged in consensual and adulterous sexual activity with appellant. This theory did not require any defense expert testimony on the  effects of Xanax. Defense counsel told the military judge that “our case is that [SB] came down the stairs voluntarily and so awoke [appellant] and engaged in sexual conduct with him.” Defense counsel asserted SB’s lack of memory surrounding the events was not credible and she was lying regarding her nefarious behavior to protect her marriage and her friendship with appellant’s wife.

. . .

The panel rejected, as do we, the defense theory of the photographs. We pause to highlight, however, in light of the high probative value of the photographs for the government, that defense counsel faced the Mount Everest of uphill battles to negate the government’s adage that the three photographs were worth a thousand words. Defense counsels’ theory of consent, and more importantly, their presentation of testimony and evidence supporting that theory, demonstrates their performance clearly fell within the wide range of reasonable professional assistance. We could easily find, if required, that defense counsel made the most with what they had.

Slip op. at 7-8. Judge Fleming also “clarif[ies] the difference between an expert consultant and an expert witness. Although an expert consultant frequently morphs into an expert witness at trial, like a caterpillar into a butterfly, those are separate roles controlled by distinct rules and legal tests.” Slip op. at 6. That clarification is necessary because “appellant blurr[ed] the distinction[s] between an expert consultant and witness and a toxicologist and psychiatrist.” Id.

Despite finding no deficiency, the CCA also concludes that even if it was deficient performance for Roberts’ defense counsel to fail to file a motion to compel an expert, it didn’t affect the result because the evidence “was of such minimal probative value, in light of the three photographs supporting SB’s credible testimony, that there is no reasonable probability its presentation at trial would have created a different result in the proceeding.” Slip op. at 8.

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