CAAFlog » September 2012 Term » United States v. Datavs

Here’s the QP from the cert petition in Datavs v. United States, No. 12-1113:

Whether, as a matter of law, trial defense counsel were ineffective when, despite their lack of knowledge and experience with sexual assault examinations, they failed to obtain an expert consultant in the field and, as a result, failed to contest or counter critical circumstantial testimony from the prosecution’s expert medical witness.

We’ve posted the full cert petition here.

United States v. Datavs, 71 M.J. 420 (C.A.A.F. Dec. 14, 2012) (CAAFlog case page) (link to slip op.),

When an appellant alleges that he suffered from ineffective assistance of counsel 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.

In United States v. Datavs, the Air Force Court of Criminal Appeals found that the two Trial Defense Counsel were deficient in their performance when they conducted their cross-examination of the Government’s Sexual Assault Nurse Examiner (“SANE”) expert witness without the benefit of the assistance of an expert of their own; particularly when the Government’s expert gave unexpectedly-damaging testimony on the matter of whether the victim’s injuries were indicative of non-consensual anal intercourse. Datavs, 70 M.J. 595, 600-601 (A.F.Ct.Crim.App. 2011). However, the CCA found that the Appellant did not suffer prejudice based on factual similarities between the testimony of the Government’s expert and the post-trial report of an expert retained by the Appellant, and concluded that “we are not convinced that there is a reasonable probability that, even if [the expert] assisted the defense counsel during the trial, there would have been a different result.” 70 M.J. at 602 (internal marks omitted).

The AFCCA issued its opinion on November 9, 2011, and the Judge Advocate General of the Air Force (joined by the Appellant) sought reconsideration. That request was denied, and on February 10, 2012, the JAG certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals incorrectly applied the standard of law under Strickland v. Washington, 466 U.S. 668 (1984) and Harrington v. Richter, 131 S.Ct. 770 (2011), when evaluating whether trial defense counsel was ineffective for not seeking expert assistance during trial after the government’s expert witness testified.

Subsequently, CAAF granted review of the following additional issue:

Whether Appellant received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant in the field of sexual assault examinations, failed to make challenges for cause against two panel members who were base victim advocates, and failed to properly impeach [S.M.F.] using her personal telephone records.

But in a unanimous opinion authored by Judge Ryan, CAAF affirms the AFCCA without really answering either question.

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The opinion is here.  Judge Ryan wrote for a unanimous court.  CAAF upholds the result below, concluding that even if there was deficient performance by the accused’s trial defense counsel, he wasn’t prejudiced as a result.

AFCCA rule 3-0 that the trial defense counsel were ineffective for not seeking a sexual assault nurse examiner, but ruled 2-1 that the accused hadn’t been prejudiced and affirmed.  The Judge Advocate General of the Air Force certified the issue of whether AFCCA erred by finding the trial defense counsel’s representation fell below an objective standard of reasonableness, even though the government had prevailed under prong 2 of Strickland.  CAAF subsequently granted the accused’s cross-petition seeking review of the prejudice determination.

CAAF affirmed AFCCA’s 2-1 ruling that the accused wasn’t prejudiced by his counsel’s performance, thus eliminating the need to decide whether their conduct was constitutionally deficient.  CAAF did note, however, that it isn’t per se IAC for a trial defense counsel to fail to counter a prosecution expert’s testimony with a defense expert witness.

In my argument preview of United States v. Datavs, No. 12-5001/AF, I predicted that this argument would “mark a lively beginning to a lively term,” and the argument didn’t disappoint. The case involves allegations of ineffective assistance of counsel that has the Government rushing to the defense of the Trial Defense Counsel, and the Appellate Defense Counsel struggling with the lack of power steering on the proverbial bus, as they try to drive it back and forth over their brethren at the trial level.

Early questioning from the court wondered whether a trial defense counsel’s performance becomes deficient when a cross-examination “blows up in their face” because the witness gives testimony very different from what was anticipated. The Government counsel disagreed with that characterization of the cross-examination in this case. The argument then changes course as the Government counsel argued (quite effectively I thought) that none of the experts – neither the Government expert who testified at trial nor the Defense expert who provided a post-trial report – could give a conclusive opinion about whether the anal intercourse that occurred was definitively consensual or definitively nonconsensual; the pivotal issue in this case. Chief Judge Baker asked what, if anything, would have been different in the cross-examination of the Government’s expert had the Defense had an expert consultant, and the Government counsel responded that very little would have been different, since the Defense got the Government expert to admit on cross-examination that the victim’s injuries could have been sustained by consensual anal intercourse.

But eventually the argument returned to the question of the effectiveness of a cross-examination, and a key point emerged: How important is the question of whether the Defense conducted an “effective” cross-examination of a Government expert? The Government’s counsel argued that it “is a very key factor in this case.” Argument audio at 15:35. But this quickly painted him into a corner when he was asked if the Appellee should prevail if the court found that the cross-examination was ineffective. He tried to shift the topic to prejudice, but the court kept pushing on the question of the Trial Defense Counsels’ performance since that’s the issue that the Government certified (it having won on the prejudice prong at the CCA). Ultimately, the Government highlighted the other preparatory efforts undertaken by the Trial Defense Counsel as evidence of their legal (though perhaps not practical) effectiveness in this case. Unfortunately, the importance of an “effective cross-examination” by defense counsel in an analysis of whether the counsel’s performance was deficient seemed unresolved at the conclusion of the Government’s argument.

The Government counsel then waived rebuttal argument and it was the Appellee’s turn. His counsel began his argument with a bang: “The Defense’s attorneys in this case were wholly unprepared, wholly uneducated, on a crucial element of this case related to the sexual assault examination, and as a result of them being unprepared, they were unable to meet the Government’s case…” Argument audio at 23:00. The Appellee’s position quickly clarified to be that the Trial Defense Counsel were constitutionally required to have sought expert assistance from the beginning of this case, based on their lack of experience and training. But the Appellee’s counsel was confronted with the fact that the Trial Defense Counsel submitted affidavits that their decision to forgo an expert was a strategic move as part of a deal to limit the testimony of the Government’s expert. Addressing this, the Appellee’s counsel fired both barrels:

Appellate Defense Counsel: Your Honor, I don’t believe that that statement in their affidavit is supported by the record-

Judge Ryan: So they’re lying in their affidavit.

Appellate Defense Counsel: I’m not saying their lying Your Honor. I don’t believe it’s supported by the record…

Argument audio at 25:25. So the argument is that the Trial Defense Counsel didn’t lie about their strategy, they just swore to something that is unsupported by the facts. This theme continued through the balance of the Appellee’s argument, as Appellate Defense Counsel scoffed at many decisions of the Trial Defense Counsel as explained in their affidavits. However the court (to the relief of trial defense counsel everywhere, I’m sure) didn’t seem inclined to take this bait.

As the argument continued, the Appellate Defense Counsel might have felt skepticism in the air, because he made what I consider to be a dramatic change of course: “I’m not saying that they had to have an expert in this case…” Argument audio 34:55. This was soon followed by another concession: “and the fact is that this case can be looked at in a number of different ways…” Argument audio at 36:00. So long as it benefits the Appellee, of course.

The argument ended with a brief discussion of the panel members who were also victim advocates, and the Appellee’s counsel conceded that this issue was waived at trial. He had to answer one last tongue-in-cheek question of whether these victim advocates were trained by the Government’s expert, and then the courtroom fell uncomfortably silent for a moment. Cue up Peggy Lee.

Chief Judge Baker then asked the Government’s counsel, yet again, if he wanted rebuttal. He declined.

Case Links:
Blog post: CCA oral argument recap
AFCCA opinion
Appellant’s (Government) brief
Appellee’s brief
Cross-Appellant’s brief
Cross-Appellee’s (Government) brief
Blog Post: Argument preview
Oral argument audio
Blog Post: Argument recap

Audio of the oral argument of United States v. Datavs, No. 12-5001/AF, on Tuesday, October 9, 2012, is posted on the court’s website at this link.

Case Links:
Blog post: CCA oral argument recap
AFCCA opinion
Appellant’s (Government) brief
Appellee’s brief
Cross-Appellant’s brief
Cross-Appellee’s (Government) brief
Blog Post: Argument preview
Oral argument audio

The first oral argument of the September 2012 Term at CAAF is United States v. Datavs, No. 12-5001/AF, which will be argued on Tuesday, October 9. The case involves allegations of ineffective assistance of counsel that caused the Judge Advocate General of the Air Force to certify the case despite the CCA affirming the findings.

In 2009, Senior Airman (SrA) (E-4) Datavs was convicted, contrary to his pleas, by a general court-martial comprise of a panel with enlisted representation, of making a false official statement and forcible sodomy, in violation of Articles 107 and 125. He was sentenced to a dishonorable discharge, reduction to E-1, and total forfeitures. The convening authority approved the sentence as adjudged. At the AFCCA, SrA Datavs raised five assignments of error, one of which questioned:

Whether Appellant received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant in the field of sexual assault examinations, failed to make challenges for cause against two panel members that were also base victim advocates, failed to prepare the necessary foundation to admit telephone records for the purpose of impeaching the complaining witness, failed to argue mistake of fact during findings argument, and failed to present evidence in sentencing regarding sex offender registry requirements.

The AFCCA issued a published* opinion in which it found that SrA Datavs’ trial defense counsel’s performance was deficient, but determined that absent the errors, the result at trial would have been the same. After correcting an error in the Convening Authority’s action (only 2/3 forfeitures may be approved in the absence of confinement), the CCA affirmed the findings and sentence.

*One note: The AFCCA opinion, which was issued on November 9, 2011, appears on its face to be a published opinion. However, in its brief on the certified issue the Government calls the opinion unpublished (Appellant’s Br. at 3). The Appellee’s brief calls the opinion published and provides a citation, 70 M.J. 595 (Appellee’s Br. at 3).

Despite “winning” at the CCA, the Judge Advocate General of the Air Force sought reconsideration (that request was joined by SrA Datavs, but denied by the court), and then certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals incorrectly applied the standard of law under Strickland v. Washington, 466 U.S. 668 (1984) and Harrington v. Richter, 131 S.Ct. 770 (2011), when evaluating whether trial defense counsel was ineffective for not seeking expert assistance during trial after the government’s expert witness testified.

Subsequently, CAAF granted review of the following additional issue:

Whether Appellant received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant in the field of sexual assault examinations, failed to make challenges for cause against two panel members who were base victim advocates, and failed to properly impeach [S.M.F.] using her personal telephone records.

The primary trial-level decision at issue is the trial defense counsels’ (there were two of them) decision to forgo a defense expert consultant in the form of a SANE (“sexual assault nurse examiner”). The defense had requested a consultant by name (Ms O’Neal), but withdrew that request pretrial in exchange for limiting the testimony of the Government’s SANE (Ms Burton). The CCA found this decision to be reasonable. However, when the Government’s SANE testified at trial, the testimony was more damaging to the defense than expected. Accordingly, the CCA found that the defense counsel were deficient by failing to renew the request for expert assistance in order to prepare for cross-examination of the Government’s expert. The certified and granted issues parse this decision by questioning the actions of defense counsel before the Government’s expert testified (granted issue) and after the expert testified (certified issue).

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