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

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