The NMCCA reverses a Naval Academy sexual assault conviction due to ineffective assistance of counsel
In an unpublished opinion in United States v. Edmond, No. 201200168 (N-M. Ct. Crim. App. Apr. 30 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses a midshipman’s 2011 court-martial convictions for making a false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact, in violation of Articles 107 and 120 (press accounts here and here), after concluding that “the appellant was not afforded effective assistance of counsel as guaranteed by the Sixth Amendment.” Slip op. at 19.
Specifically, writing for a unanimous panel, Chief Judge Mitchell finds that:
In the appellant’s case, the evidence was not overwhelming. While there was some medical evidence of bruising supporting the alleged victim’s account of the sexual contact, this case ultimately boiled down to the issue of credibility. It was on this point that the trial defense team failed in several significant ways summarized as follows:
(1) The defense team failed to effectively cross-examine the alleged victim in that it had evidence of inconsistent statements made by XM during the Article 32 Investigation that differed significantly from her testimony at trial but had no mechanism in place to challenge her on cross-examination;
(2) While the trial defense team planted the seed in the minds of the members that the alleged victim told MIDN B yet another account of the sexual assault, they forgot to follow up with this line of questioning after calling her as a witness;
(3) The trial defense team’s attempt to bolster their client’s credibility had the opposite effect when they asked MIDN B if she thought the appellant was trustworthy and she responded in the negative; and
(4) Finally, while we do not second-guess the defense’s tactical decision to put the appellant on the stand, the record strongly suggests that they did so without fully considering or advising him of the ramifications of doing so, including opening the door to the use of his previously suppressed statement, which was replete with inconsistencies, as impeachment evidence.
Based on the foregoing, we have little difficulty concluding that the trial defense team’s level of advocacy fell “measurably below the performance  (ordinarily expected) of fallible lawyers.” Polk 32 M.J. at 153 (citation omitted).
Slip op. at 17-18. The CCA authorizes a rehearing.