Army Court of Criminal Appeals

Update. A commenter notes.

There is another, albeit more subtle, takeaway from Miner. It is a dual blast arising in Gideon and Strickland, to the defense leadership of all of the Services Defense Counsel functions. With actual trials in courts-martial going the way of the dodo bird, experienced counsel (with supervisory responsibilities) have likewise significantly declined.

Miner demonstrates that the most basic tenets of criminal defense lawyering were not observed. E.g., the very first thing one must do, as SCOTUS has reminded us, is to investigate the facts. Strickland, 466 U.S. 668, at 690-91. Two lessons flow: (1) listen to your client; and (2) investigate the facts with due diligence. Miner is NOT an aberration, unfortunately. There are many similar scenarios in the appellate pipelines-kudos to the Panel here (thanks to some great appellate advocacy) for taking the "bull by the horns" and calling out what needed to be called out. Hopefully someone in charge is listening.

In Miner, the court finds IAC and in the process names one of the DC (the more experienced one).

Appellant was represented by two captains assigned to Trial Defense Service (TDS) at Fort Polk, Louisiana. The Senior Defense Counsel, Captain (CPT) Delta, detailed himself to the case but subsequently detailed a subordinate junior defense counsel as appellant's first chair attorney. This was the first trial the subordinate defense counsel had served as a first chair attorney and only the second trial in which the subordinate attorney had any responsibilities. Leading up to the trial, the attorneys worked as a team, although CPT Delta took a greater role in preparing for the pre-sentencing proceedings, while the subordinate defense counsel focused on the merits phase of appellant's court-martial, under CPT Delta's
guidance and supervision. 

At appellant's court-martial, the government called three witnesses: PV2 JC, her roommate who testified that PV2 JC was upset the next morning and to viewing a text where appellant "apologized" the next morning, and another witness who testified that PV2 JC was annoyed and to overhearing some of a phone conversation between PV2 JC and appellant and him "apologizing" the next day. 5 The defense also called three witnesses: appellant's roommate, PFC TL, and two witnesse6s who saw either PV2 JC or appellant the morning after the incident. On the advice of counsel, appellant did not testify in his own defense and they did not call character witnesses during the merits phase of the court-martial. 6

n. 4. To emphasize the expansive nature of the DuBay hearing, we note the transcript for that hearing was over six hundred and thirty pages while appellant's court-martial only comprised a little over two hundred and fifty pages. 

n. 6. ​There is evidence of repeated discussions regarding whether appellant would testify and appellant did engage in the standard colloquy regarding his decision not to testify with the military trial judge. There is no evidence to indicate defense counsel were prepared for appellant's testimony, should he have changed his mind and exercised his rights to testify in his own defense.

Having laid out the law of IAC, ACCA gets to the nub of the issue which, as we know, often comes down to prejudice.

T​he hard question before this Court is not whether appellant's counsel were ineffective in several areas (they were); but rather to assess the level to which their failures prejudiced their client. In order to analyze what, if any, prejudice occurred in this case, we will first discuss the three witnesses the defense presented and we will next turn to the possible exculpatory defense witnesses that were not presented as contrasted against the government evidence.
. . . 
Defense's entire theory of the case focused on PV2 JC's credibility. Along those lines, defense specifically proffered that PV2 JC alleged that she continually said "no" to appellant and continued to get louder, but no one heard her. During cross-examination, PV2 JC testified that she was not screaming but she was loud enough that appellant's roommate could have heard it. As previously discussed, PFC TL testified that he never heard PV2 JC say "no," but the probative value of his testimony was undermined by the government because of his headphone usage. We now turn to discuss an additional, but undiscovered (at least by appellant's trial defense counsel), defense auditory witness.

Query: is the court implying the Government or investigators knew but there is an underlying Brady-Plus issue? Anyway,

It appears the defense (and I suppose investigators) never interviewed Appellant's next door neighbor and the one across the hall. At the Dubay

Specialist DW described the layout and acoustics of the rooms, stating he could generally hear "everything" in appellant's space, to include appellant brushing his teeth and cooking meals. Specialist DW was present in his room on the night of the alleged assault and was awake until approximately 0400 because he suffered from untreated insomnia.

n.9. Further, an additional defense auditory witness, Sergeant (SGT) NP, who lived directly across the hall from appellant testified at the DuBay hearing that it "was pretty easy to hear in the barracks" and if "someone was yelling or screaming or talking very loudly" that he could have heard it. Sergeant NP's DuBay testimony corroborated PFC TL and SP DW's testimony and he could have served as a third defense witness to testify regarding the auditory conditions near appellant's barracks room. 

While there are lessons here for DCs, I think too TCs can learn something. This comes from two questions: why did CID not interview the neighbors or why did not the TC arrange for CID to interview them? It seems obvious that the neighbors should have been interviewed. That seems a relevant investigative step--looking for witnesses who may have seen or heard something. True, canvassing interviews do not always produce useful information, but as the Dubay hearing here showed and as ACCA discusses, the neighbors did have relevant testimony. As a trial counsel I would want to know that.