Mr. Pristera argues us v. cook at the air force court of criminal appeals - ineffective assistance of counsel and new trials at issue
On November 17, 2016, Mr. Pristera argued the case of United States v. Cook on appeal at the United States Air Force Court of Criminal Appeals.
The unique appeal presented diametrically opposing positions where Mr. Pristera had to concurrently argue for a new trial based on newly discovered evidence under R.C.M. 1210, and also ineffective assistance of counsel for the defense counsel’s failure to locate the evidence. The newly discovered evidence was a witness that was discovered a few days after the trial that could have impeached the alleged victim’s testimony. The Air Force Court was very professional and non-confrontational. They were clearly prepared for the appeal and asked very targeted intelligent questions. We expect a decision in this case in early 2017.
It is so important that counsel properly investigate cases before trial. Below is an introduction to the law of ineffective assistance of counsel.
Ineffective assistance of counsel claims are subject to a de novo standard of review. United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997), citing S. Childress & M. Davis, Federal Standards of Review, § 12.09 (2d ed. 1982.) United States v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002).
A military accused has a constitutional right to the effective assistance of counsel. United States v. Denedo, 66 M.J. 114, 127 (C.A.A.F. 2008), aff’d, 129 S.Ct. 2213 (2009); United States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
The burden of proof lies with the Appellant, and he “must surmount a very high hurdle” and overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Denedo, 66 M.J. at 127 (citing United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). This presumption of competence cannot be overcome unless the accused demonstrates: first, a deficiency in representation, and second, prejudice. Scott, 24 M.J. 186.
Firstly, the defense counsel’s deficiency must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Denedo, 66 M.J. at 127-28 (citing United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997). Examples of failures that can constitute a deficiency in representation are affirmative misrepresentations of the law, failures to investigate defenses, witnesses, or evidence, or specific errors made which were unreasonable under prevailing professional norms. See United States v. Cronic, 466 U.S. 648 (1984); Denedo, 66 M.J. at 127-28; Scott, 24 M.J. at 188.As a general matter, however, the Court “will not second-guess the strategic or tactical decisions made at trial by defense counsel.” Perez, 64 M.J. at 243 (citing United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (citations omitted)). Additionally, “[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Scott, 24 M.J. at 188.
Secondly, the defendant must be prejudiced by errors “so serious as to deprive the defendant of a fair trial.” Denedo, 66 M.J. at 127-28 (citing Moulton, 47 M.J. at 229). The test for prejudice is whether, in “consider[ation of] the totality of the evidence before the factfinder,” there is a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Scott, 24 M.J. at 189 (citing Strickland, 466 U.S. at 695).
In Scott, the Court of Military Review applied the Strickland test and found that the defense attorney’s performance was both deficient and prejudicial. Scott, 24 M.J. at 192. In that case, the defense was based on alibi. Id. at 189-90. The defense attorney did not timely investigate the defendant's alibi and did not follow up after a volunteer investigator located possible witnesses. Id. at 189-90. At a DuBay hearing, it was determined that one of the witnesses would likely have been able to corroborate the defendant’s alibi defense had the defense attorney timely interviewed her and adequately prepared her for trial. Id. The Court found that in “light of reasonable professional norms … [defense counsel's performance] fell far short of reasonable competence,” and was deficient under Strickland because he did not put forth reasonable effort to investigate the defendant’s alibi. Id. This deficiency was prejudicial, the Court concluded, because had the defense counsel properly investigated and interviewed the witness, he would have been able to corroborate the defendant’s story, thus establishing a complete alibi defense to the charges. Id. at 193. The Court ultimately reversed the lower court and set aside the conviction. Id. at 193.
Academics Continue Their Push to Remove Protections for Accused Servicemembers in Sexual Assault Cases
A recent article (see below) presents the position that Military appellate courts should no longer have the authority to decide cases based on factual sufficiency. The article describes in detail the different stance that military courts have as compared to most federal and state courts regarding factual sufficiency. While I disagree with the overall opinion that Military appellate courts should no longer have the authority to review a case of factual sufficiency, the important take away for the Servicemember is that the need for competent and experienced counsel, at the trial, post-trial, and appellate stages, has never been higher. Members of congress and academics continually push for changes in the military justice system, but few of the voices behind the changes have actually observed a recent sexual assault Court-Martial.
I. A Defense Attorney’s Analysis of: Lisa M. Schenck, "Just the Facts Ma’am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims Are "Incapacitated," 45 Southwestern Law Review 522 (2016).
Appellate review for factual sufficiency is a necessary protection for the military accused. When an appellate court reviews a case for factual sufficiency, the court is taking a fresh look at the facts presented at trial and determining whether a reasonable jury (or “panel” as they are called in Courts-Martial) could have found the appellant guilty beyond a reasonable doubt. Some of the criticisms of this authority highlighted in the article are (1) the appellate court does not have the benefit of observing witness testimony at trial, (2) that almost all federal and state appellate courts do not have this much authority, and (3) this authority essentially enables the appellate court to grant no deference to the military panel and substitute its judgement for that of the factfinder. Certainly, if a military appellate court overturns a conviction for factual (in)sufficiency, the court is substituting their judgement for that of the panel. Such a result, however, is not a bad thing.
The author’s opinion is largely based on cases involving sexual assault convictions by means of incapacitation of an alleged victim. The poorly defined meaning of “incapacitation” is at the heart of the problem. The article qualifies its opinion to remove this authority from the military appellate courts by concurrently arguing that there needs to be a clearly defined definition of “incapacitated.” We could not agree more with this point, but don’t hold your breath. Such a thing is easier said than done.
With all that in mind, the author argues that a military accused no longer needs the added protection of an appellate court’s authority to overturn a case based on factual sufficiency. To support this position, the author highlights, among other things, the improved quality of defense representation and due process afforded in the military system since the inception of the UCMJ in the 1950s, the significant effort to combat unlawful command influence in the military justice system, and the general reliability of a military panel. With more protection in place to ensure that a military accused receives a fair trial, the author argues that our system no longer needs such an unencumbered review by the appellate courts.
Regarding the issue of unlawful command influence and reliability of a panel in sexual assault verdicts, there is no fair comparison to civilian jurisdictions. Even under current military law, it is legal (not unlawful command influence) for a commander to require every Servicemember (and thereby every panel member) to take sexual assault training. There is no civilian equivalent of this. Could you imagine if the governor of your state required every potential juror in the state to take sexual assault training prior to your trial for sexual assault? And then the judge tells you that that despite the sexual assault training they received, you will still receive a fair trial because the judge will instruct them to disregard what they heard in that training? Additional protection at the appellate level would not be such a bad thing in that case.
Absent from the article, and the primary basis of my disagreement with this position, is the fact that military panels, unlike federal and state jurisdictions, are not required to have a unanimous verdict for a finding of guilty. In fact, in many circumstances, the panel only needs a 2/3 majority to convict and can have as few as three members. Most if not all civilian jurisdictions require a unanimous verdict with a set number of jurors. The meaning of this significant deviation from the civilian sector is that a military panel’s verdict is not as representative of the views of the members as is a civilian jury.
I am not arguing that Courts-Martial should require a unanimous verdict from a panel. The needs of the military to ensure minimal disruption to the mission simply could not withstand the immeasurable burden of requiring a unanimous verdict in every case. The increase in “hung juries” and the additional deliberation time per Court-Martial alone would suffocate the military justice system. Rather, I support the position that with a 2/3 guilty verdict from a panel in a felony case, additional appellate court authority to ensure that there was a fair trial, is appropriate.
II. The pendulum has not stopped moving towards the Government.
The military defense community is somewhat a victim of our own success. The single greatest driving force behind military justice reform is the fact that the defense community wins more than the government thinks we should. Our firm in particular has extraordinary success with sexual assault cases.
That success causes the government to attempt to “swing the pendulum” back to their side. They are doing this by changing the law, changing the rules, and reducing the protections that accused Servicmemebrs have. Unfortunately, too many lawmakers rely on the narrow-minded statistics of conviction rates, rather than a more substantive analysis of the strength of the cases the Government choses to bring.
The continued need for protection of the accused is obvious to any observer of the average sexual assault trail. Therein lies the problem. Congressional and academic case analysis is conducted on high profile outliers, not the everyday sexual assault trial.
As congress and the military consider measures to remove/reduce protections afforded to the accused Servicemember, it has never been more important to have qualified and experienced civilian counsel at every stage of representation. If the military appellate courts ever do lose the authority to review a case for factual sufficiency, they only protection will be to make sure the military panel gets the verdict right at the Court-Martial.
Fight Over the Definition of Reasonable Doubt in the Air Force Headed to the Military's Highest Court
As a litigator, I can say that I have memorized the definition of reasonable doubt in each of the branches. Many times I have stood in front of a jury and discussed that definition.
Each of the branches has slightly different definitions of reasonable doubt. The definition of reasonable doubt can often mean the difference between guilt or innocence.
In an interesting development, 23 June 2016, the Court of Appeals for the Armed Forces granted review in an Air Force case over the definition of reasonable doubt. See United States v. McClour. The Court is going to examine whether there is an inconsistent application of the definition of reasonable doubt between the branches.
The Air Force defines reasonable doubt under the "firmly convinced" standard:
A “reasonable doubt” is a conscientious doubt, based upon reason and common sense, and arising from the state of the evidence. Some of you may have served as jurors in civil cases, or as members of an administrative board, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that.
It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find the accused guilty. If, on the other hand, you think there is a real possibility that the accused is not guilty, you must give the accused the benefit of the doubt and find the accused not guilty.
We like the Army the definition - and I hope we don't lose it in this case. The Army definition states that the evidence must exclude every fair and rational hypothesis except for that of guilt. I have won many cases referencing that standard in closing:
A “reasonable doubt” is not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. “Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt.
The Navy and Marine Corps uses a definition that talks about general misgivings:
By reasonable doubt is intended not a fanciful, speculative, or ingenious doubt or conjecture, but an honest and actual doubt suggested by the material evidence or lack of it in the case. It is a genuine misgiving caused by insufficiency of proof of guilt. Reasonable doubt is a fair and rational doubt based upon reason and common sense and arising from the state of the evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused's guilt.
There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think there is a real possibility that he/she is not guilty, you shall give him/her the benefit of the doubt and find him/her not guilty.
I will be watching this case with great interest to see whether we wind up with a uniform definition of reasonable doubt.
A copy of the grant order and a Motion for Appropriate Relief that the accused filed in Mclour is attached for some light reading. Hats off to the Air Force appellate attorneys for preparing a draft motion for others to use.