(
IN
MILITARY
U N I T E D
(
THE
FIRST
DISTRICT
JUDICIAL
OF
CIRCUIT,
WASHINGTON,
U.S.
ARMY
WASHINGTON,
D.C.
STATES
Findings
v.
of
Fact
Conclusions
(DuBay
of
and
Law
Hearing)
.
SGT, U . S . Army
1 2 April 2 0 1 7
ARMY Crim App. N o .
BACKGROUND:
1.
On 23 N o v e m b e r 2 0 1 6 , the Army C o u rt of C r i m i n a l Appeals (ACCA) ordered a limited
h e a r i n g in accordance with United States v. OuBay (AE L X V I I ) .
The ACCA returned this
case to The J u d g e Advocate G e n e r a l of the Army for such action as is required to conduct a
limited hearing to determine the facts s u r r o u n d i n g a p p e l l a n t ' s a l l e g a t i o n s that his trial
defense c o u n s e l were ineffective in p r e p a r i n g the a p p e l l a n t to testify, in f a i l i n g to contact
n u m e r o u s potential w i t n e s s , a n d in failing to call certain witnesses at trial as requested by
the a p p e l l a n t .
2.
On 5 D e c e m b e r 2 0 1 6 , The J u d g e Advocate G e n e r a l designated the G e n e r a l Court­
M a rt i a l C o n v e n i n g Authority, M i l i t a r y District of W a s h i n g t o n , as the c o n v e n i n g a u t h o r i t y of
action for the DuBay h e a r i n g (AE LX V I ) .
3.
The c o n v e n i n g authority did not receive a recommendation from the Staff J u d g e
Advocate to convene this C o u rt to conduct the limited h e a r i n g .
At the h e a r i n g , counsel for
both sides agreed the ACCA's order was sufficient.
4.
On 1 - 2 F e b r u a ry 2 0 1 7 ,
I conducted the limited hearing and considered the following
d o c u m e n t a ry e v i d e n c e :
a.
Record of t r i a l , to i n c l u d e the a p p e l l a n t ' s post-trial s u b m i s s i o n s (dated 5 December
2014).
b.
S u b m i s s i o n s a n d briefs submitted to the Army C o u rt of C r i m i n a l Appeals, to i n c l u d e
Appellant's a s s i g n m e n t of error and brief to the ACCA, affidavits from trial defense c o u n s e l ,
and 1 LT
c.
m e m o r a n d a for record.
Appellate exhibits attached to the record of the DuBay h e a r i n g .
I also considered testimony at the h e a r i n g from the following w i t n e s s e s :
a.
b.
c.
(
United States v.
- Essential F i n d i n g s of Fact a n d C o n c l u s i o n s of Law
(DuBay H e a r i n g )
d.
j.
k.
.
The a p p e l l a n t .
E S S E N T I A L F I N D I N G S OF FACT:
5.
Before answering the q u e s t i o n s posed by the Army C o u rt of C r i m i n a l Appeals, I offer the
following f i n d i n g s offact regarding credibility of witnesses:
a.
After appellant's c o u rt - m a rt i a l , he immediately retained civilian c o u n s e l to assist with
post-trial s u b m i s s i o n s to the c o n v e n i n g authority.
MAJ
provided a copy of his file
to the new civilian c o u n s e l s h o rt l y after the court-martial a d j o u r n e d .
b.
At that point, MAJ
knew it was likely that the a p p e l l a n t would allege
ineffective assistance of c o u n s e l .
HROT at 337-38.
I find that retaining a civilian counsel
for post-trial s u b m i s s i o n s is very u n u s u a l a n d MAJ
was on notice that he might
have to e x p l a i n his representation in the future.
c.
Despite b e i n g on notice of a potential IAC c l a i m , MAJ
did not make hard
copies of key d o c u m e n t s that could have been used to show h i s representation.
e x a m p l e , MAJ
attached q u e s t i o n s he intended to ask a p p e l l a n t at trial; MAJ
copy of the e m a i l or the draft q u e s t i o n s .
these materials.
d.
HROT
1
MAJ
HROT at 1 1 1 .
d i d not p r i n t a hard
s a i d he m a i n t a i n e d d i g i t a l copies of
at 3 3 9 .
On the first day of the OuBay h e a r i n g , MAJ
were lost.
testified that the draft questions
He stated that in reviewing h i s case file, a b i n d e r was m i s s i n g ; he
a l s o said he c o u l d not access h i s m i l i t a ry e m a i l a c c o u n t b e c a u s e he had retired.
e.
On the s e c o n d day of the Ou Bay h e a r i n g , MAJ
Both sides q u e s t i o n e d MAJ
1
By way of
stated that, before trial, he sent an e m a i l to the a p p e l l a n t and
.
Then I asked MAJ
was recalled as a witness.
about what efforts he
For clarity, H R O T refers to pages in the record of trial from the DuBay hearing.
the original record of trial.
2
Id.
ROT refers to pages in
(
United States v.
(
- Essential F i n d i n g s of Fact and C o n c l u s i o n s of Law
(DuBay Hearing)
made to safeguard materials in this case.
D u r i n g that e x c h a n g e , MAJ
said that he
had found the m i s s i n g q u e s t i o n s d u r i n g the e v e n i n g recess:
Q.
Once you knew he was getting a civilian c o u n s e l , did you make any efforts to try to
memorialize the work y o u ' d done on the case, now that you at least thought, in the back of
your m i n d , he might allege ineffective assistance of counsel?
A.
At the time before I PCS'd, I had everything organized back then.
Q.
Let me ask you this.
For example, it appears to me that you can't find the questions that
you'd prepared to ask h i m that you provided to h i m .
Did you make any effort, o n c e he said
·
'Tm getting a civilian for my 1 1 0 5 s , " to print off those types of documents and save them?
A.
The document for the questions - I asked my wife to look through some of my stuff, and
it is there.
The questions that
advisal form.
I
know
I
said
I
I
emailed h i m , that is there, but the -
couldn't find it, but it is there.
I
I
still can't find the rights
do have that.
Q.
So you're now saying you have the questions that you were g o i n g to ask h i m ?
A.
I do.
Q.
Did you mention that to counsel?
A.
N o , sir, I didn't.
Q.
Why didn't you mention that to everyone that you now had discovered these missing
That seems incredibly important.
questions?
A.
I s h o u l d have.
HROT at 3 3 8 .
lost questions.
By the time we got here, you guys were already in session.
Notably, MAJ
did not notify the parties that he had discovered the
If I had not asked the q u e s t i o n , it is unclear if MAJ
would have
disclosed that he found the m i s s i n g document.
f.
I find that MAJ
the a c c u s e d .
did not adequately memorialize his efforts in representing
I find that his failure to m a i n t a i n a complete case file - which would have
h e l p e d h i m fully answer questions at the h e a r i n g - undercuts his credibility as a witness.
recognize that a trial can be chaotic a n d it is u n d e r s t a n d a b l e for case files to be misplaced
after trial is complete, p a rt i c u l a r l y for military counsel who regularly move.
not a case in w h i c h IAC a l l e g a t i o n s were raised m o n t h s or years after trial.
However, this is
If that were the
s i t u a t i o n , I would understand hazy details from c o u n s e l who are attempting to remember
reasons for d e c i s i o n s made long a g o .
I n this case, the a p p e l l a n t d i s c h a r g e d his military
counsel immediately after trial and retained c i v i l i a n c o u n s e l .
Military c o u n s e l suspected
(and probably believed) that the a p p e l l a n t would q u e s t i o n t h e i r representation.
g.
R e g a r d i n g the a p p e l l a n t , I found h i m to be credible.
Of p a rt i c u l a r significance,
a p p e l l a n t has been consistent regarding his claims of ineffective assistance of c o u n s e l .
In
h i s post-trial s u b m i s s i o n s , a p p e l l a n t wrote that h i s c o u n s e l had d i s c u s s e d their strategy for
trial.
The c o u n s e l p l a n n e d to "bring up the threats m a d e by
away with d i v o r c i n g me") a n d the m e m o r a n d a kept by 1 LT
3
( i n c l u d i n g "he won't get
The a p p e l l a n t further
(
(
- Essential F i n d i n g s of Fact and Conclusions of Law
United States v.
(Du Bay H e a r i n g )
wrote that his counsel were g o i n g to call Mr.
2
s i m i l a r false allegations
had made.
(
ex-husband) about
M e m o r a n d u m from
Subject: Assertion of Legal Error a n d R e q u e s t for C l e m e n c y , Attachment 1 , at 2 (5 Dec 1 4 ) .
C o u n s e l ' s post-trial s u b m i s s i o n m e m o r a n d u m a l s o discusses the trial defense counsel's
alleged failure to prepare the a p p e l l a n t to testify at for trial.
h.
Id. at 2-3.
I recognize that any a p p e l l a n t has a motive to present evidence in a favorable light.
However, in this case, the a p p e l l a n t has been consistent in his allegations of ineffective
assistance of c o u n s e l .
He d i s c h a r g e d his military c o u n s e l immediately after trial and
retained civilian c o u n s e l .
At each post-trial stage - from post-trial s u b m i s s i o n s to appellate
f i l i n g s to testimony at the Ou Bay h e a r i n g - the a p p e l l a n t has been unwavering about his
claims.
This consistency causes me to believe his testimony is more credible.
Additionally,
I found the a p p e l l a n t to be c a n d i d and thoughtful d u r i n g his testimony at the h e a r i n g .
i.
T h o u g h not part of the Ou Bay order, I found the defense c o u n s e l were deficient in
failing to investigate a p r i o r allegation made by
1 8 October 2 0 1 0 ,
case.
AE L XX V I I I .
at Fort B r a g g , North C a r o l i n a .
On
testified at an Article 32 pretrial investigation in an unrelated
The accused in that case was charged with a b u s i v e sexual contact and
wrongful sexual contact, a n d
was the named victim for both offenses.
She testified
at the Article 32 hearing and the investigating officer ultimately determined there were not
"reasonable g r o u n d s " to believe the accused committed the offenses.
AE LXXVII.
MAJ
testified that he did not contact the defense counsel in that case to find out if they
had information about Tabatha that m i g h t helpful in this case.
HROT at 322-23.
As noted
at the h e a r i n g , at this point, the charges in the Fort Bragg case had been d i s m i s s e d
following the Article 32, so the Fort Bragg defense counsel would have been able to freely
d i s c u s s the case.
This oversight is s i g n i f i c a n t .
A Government witness (and mother of the
three alleged victims) had made a l l e g a t i o n s that were insufficient to s u p p o rt a prosecution.
I n the Article 32 h e a r i n g , s h e testified a n d was subject to cross-examination, and defense
c o u n s e l in that case likely had theories for i m p e a c h i n g Tabatha at trial.
If they had made a
p h o n e c a l l , defense c o u n s e l could have discovered a windfall of potential areas for further
investigation.
The defense c o u n s e l failed to pursue this area of i n q u i ry .
Questions from paragraph 2(a) of AE L>CV/1:
What was the substance of the d i s c u s s i o n s between a p p e l l a n t and MAJ
regarding a p p e l l a n t testifying at trial?
attorneys to prepare to testify?
How often did ap pel l ant meet with his
What were the contents of those meetings?
a p p e l l a n t actively participate in these d i s c u s s i o n s ?
Did
Who m a d e the ultimate decision
for a p p e l l a n t to testify?
6.
At an early m e e t i n g , MAJ
used a standard Trial Defense Service (TDS)
worksheet to explain the a p p e l l a n t ' s p e r s o n a l rights.
2
For the sake of clarity, "
U s i n g the worksheet, MAJ
will be used in the document to refer to the appellant's former wife.
I
note that her last name changed d u r i n g the course of these proceedings and her first name was spelled
differently in some documents.
4
(
United States v.
(
- Essential F i n d i n g s of Fact and C o n c l u s i o n s of Law
(DuBay H e a r i n g )
explained to the a p p e l l a n t that there are certain choices a c r i m i n a l accused personally
makes.
The a p p e l l a n t was told that it was h i s personal decision to select forum, to make a
plea of g u i l ty or not g u i l t y , a n d whether to testify at t r i a l .
7.
The a p p e l l a n t understood that is was his p e r s o n a l d e c i s i o n a n d his personal right to
testify or to remain silent at trial.
I recognize that the a p p e l l a n t ' s decision may have been
impacted by a lack of preparation for testifying, but that does not undercut the conclusion
that he p e r s o n a l l y m a d e the decision to testify.
8.
Based on the evidence presented,
prepare the a p p e l l a n t to testify.
I find that defense c o u n s e l did not a d e q u a t e l y
testified at the OuBay h e a r i n g a n d was asked
MAJ
very specific questions about when h e a n d a p p e l l a n t b e g a n serious d i s c u s s i o n s a b o u t
whether to testify.
These q u e s t i o n s were separate from the general advisement of the
personal rights of the a c c u s e d .
MAJ
provided a series of difficult-to-follow
responses:
Q:
At what point in time did you have a serious discussion with Sergeant
whether or not he s h o u l d or s h o u l d not testify?
about
What I want to try to do is to back it up as far
away from trial as you can possibly remember.
A:
To me, I considered every conversation I had with Sergeant
to be serious.
From
the very b e g i n n i n g , when I advised h i m of his pretrial rights, court-martial rights, one of the
six things we talked about was the right to testify.
H R O T at 1 1 0 .
Following t h i s n o n - r e s p o n s i v e answer - that "every conversation" with
a p p e l l a n t was a s e r i o u s o n e - c o u n s e l attempted to clarify:
Q:
There's the right to testify, and then there's whether you want to do it or not, right?
A:
Yes.
From the very b e g i n n i n g , when I told Sergeant
comes down to the credibility of the witnesses.
testifies, but he d i d n ' t have to decide right then.
the point of right before he got on the stand.
that in cases like this, it
I told himthat my recommendation is that he
He could change his m i n d a l l the way up to
What I said then was, "Let's prepare as if you're
g o i n g to testify, but remember, this is my recommendation, but ultimately, the decision is
yours."
Q:
When did you begin preparation to testify?
A:
The way that I did it generally is I prepared, and I did the same thing with Sergeant Jones
- prepare a person who was accused to testify.
to prepare you to testify."
I never say to the person, "Now, we're going
What I'd do is, over the course of our relationship, ask the type of
questions to them how I ' d ask them while they were on the stand, and then get their
response; have a dialog a little bit about some of the ways that I t h i n k the answer could be
refined or shortened, or some of the t h i n g s s h o u l d be emphasized or deemphasized.
We did
that all the way throughout the process up until the last 4-8 weeks before trial, culminating at
the point where I sat Sergeant
down, and his wife - I believe his wife,
was
present- we had a question-answer session where I went through all the questions I would
ask h i m .
Then after that session, I emailed Sergeant
was going to ask h i m .
5
a copy of
the
questions that I
(
United States v.
(
- Essential F i n d i n g s of Fact and C o n c l u s i o n s of Law
(Du Bay H e a r i n g )
HROT at 1 1 0 - 1 1 .
U p o n q u e s t i o n i n g by Government c o u n s e l at the h e a r i n g , MAJ
described preparing the a p p e l l a n t to testify:
A:
I n the b e g i n n i n g , from the time that the charges were preferred to the time that the
charges were referred, we probably d i d n ' t meet often.
But after the charges were referred,
we would meet regularly, at least once maybe every 1 0 days or so.
Within the 8 weeks
leading up to the trial, I would attempt to meet with him maybe once a week, and I would
often reserve Saturdays to talk to h i m .
Q:
So when you'd meet with h i m to prepare h i m , would you remind h i m of his right to testify?
A:
Not only remind h i m - well, we talked a b o u t his right to testify, but I ' d talk to him about
"you have the o p t i o n , but we're g o i n g prepare."
As I said before, I never said " I ' m preparing
you to testify right now," but what I would do is engage him in question d i a l o g u e , as I said
before.
HROT at 1 1 7 .
9.
I find that MAJ
was conflating routine d i s c u s s i o n s with the a p p e l l a n t (which
occurred) with preparing the a p p e l l a n t to testify (which did not o c c u r ) .
MAJ
that he asked the accused q u e s t i o n s in an informal m a n n e r in his office.
stated
HROT at 1 3 3 .
It
appears there was no formal practice of the a p p e l l a n t ' s testimony until a break in the midst
of trial.
10.
find it to be i m p l a u s i b l e that MAJ
I
in the process as he c l a i m s .
recommended the a p p e l l a n t testify as early
MAJ
testified that before the Article 32 investigation,
he recommended the a p p e l l a n t testify at trial.
HROT at 1 3 3 .
It is hard to believe that at this
early stage, a n y defense c o u n s e l would be able to make an informed recommendation
about whether an accused s h o u l d testify.
MAJ
c l a i m is also u n d e r c u t by his
testimony that he intended to use the Article investigation for "discovery purposes."
HROT
at 8 0 .
1 1 .
This inconsistency with MAJ
testimony, coupled with his failure to m a i n t a i n a
hardcopy of the proposed q u e s t i o n s , c a u s e s me to accept the a p p e l l a n t 's testimony that
defense c o u n s e l o n l y recommended testifying in the m i d d l e of t r i a l .
I find that defense
c o u n s e l ' s recommendation was largely based on a belief that the a p p e l l a n t had to rebut
evidence that the a p p e l l a n t made a pretrial statement to the effect of, "I know
is 1 6 ,
but rape?"
12.
As an i n i t i a l matter, it is u n c l e a r why defense counsel believed this alleged statement
s h o u l d have impacted the a p p e l l a n t ' s d e c i s i o n to testify.
transcript, SA
know
As set forth in the o r i g i n a l trial
agreed with trial c o u n s e l ' s q u e s t i o n that the a p p e l l a n t s a i d , "I
is 1 6 but rape?"
ROT at 4 7 9 .
The m i l i t a ry j u d g e , on h i s own accord, stated
he w o u l d "not c o n s i d e r the testimony from t h i s witness i n v o l v i n g the accused and invocation
of c o u n s e l for any reason."
ROT at 479-80.
I recognize that at the DuBay h e a r i n g , MAJ
testified that he did not recall the military j u d g e saying he would disregard the
statement ( H R O T at 1 0 3 ) and the m i l i t a ry j u d g e ' s statement could potentially be read to
6
(
United States v.
(
- Essential F i n d i n g s of Fact and C o n c l u s i o n s of Law
(DuBay H e a r i n g )
mean that any c o m m e n t about the accused invoking would d i s r e g a r d e d , t h o u g h the military
j u d g e might consider the s p o n t a n e o u s statement.
c o n c l u d e that at trial MAJ
appellant's s p o n t a n e o u s statement.
cross-examined SA
I n considering this factual dispute, I
believed the m i l i t a ry j u d g e intended to disregard the
I n r e a c h i n g this c o n c l u s i o n , I noted that MAJ
and did ask about the statement in any way.
Given the potential i m p o rt a n c e of that statement, I believe MAJ
ROT at 480-82.
would have
attempted to explain it d u r i n g cross-examination if he believed the statement was properly
before the c o u rt .
13.
Based on the evidence presented, it appears trial defense c o u n s e l were confused
a b o u t whether the s p o n t a n e o u s statement had been a d m i t t e d .
Rather than seeking
clarification from the m i l i t a ry j u d g e , they advised the accused to testify.
According to MAJ
"the s p o n t a n e o u s statement was the motivating reason why I recommended he
testify."
HROT at 325.
D u r i n g the a p p e l l a n t ' s testimony, defense c o u n s e l asked a b o u t the
spontaneous statement a n d the a p p e l l a n t d i s c u s s e d it some detail.
14.
I n reviewing the record,
the Defense case.
ROT at 570-75.
I c o n c l u d e the a p p e l l a n t ' s testimony did not negatively impact
The a p p e l l a n t ' s testimony was relatively brief.
The direct examination
was o n l y 34 pages (ROT at 543-76), a n d some of those pages i n c l u d e d several lines of
objections and d i s c u s s i o n of objections.
D u r i n g direct e x a m i n a t i o n , the a p p e l l a n t denied the
allegations in a straightforward m a n n e r .
The cross-examination was less than 9 pages
3
(ROT at 578-86) and did not impeach the appellant or otherwise u n d e r m i n e h i s testimony.
Notably, the a p p e l l a n t ' s testimony did not open the door for other evidence to be admitted.
While the Government presented rebuttal evidence after the Defense rested, it was limited
to clarifying s e e min g ly -c o lla te ra l issues (to i n c l u d e where the a p p e l l a n t resided d u r i n g
certain offenses a n d how law enforcement advised the accused of h i s Article 31
rights).
Question from paragraph 2(b) of AE LXV/1:
Why was Father
not called as a t e l e p h o n i c witness or afforded a
stipulation of expected testimony in the defense case?
1 5 . Defense c o u n s e l made a s o u n d tactical d e c i s i o n r e g a r d i n g Father
.
While this
witness had favorable testimony a b o u t the a p p e l l a n t ' s duty performance, he also would
have testified that the a p p e l l a n t had borrowed m o n e y f r o m the witness.
16.
H ROT at 1 2 3 .
I find it to be a reasonable decision by c o u n s e l to forego c a l l i n g this witness or entering
a stipulation of expected testimony.
While this witness had somewhat favorable testimony,
it was reasonable for counsel to determine that the favorable testimony would have been
outweighed by the testimony that the a p p e l l a n t had borrowed m o n e y from a member of the
clergy.
3
On pages 576 to 577 in the record of trial, the military judge discussed an evidentiary issue.
counsel did not begin cross-examination until page 578.
7
Trial
(
(
- Essential F i n d i n g s of Fact and C o n c l u s i o n s of Law
United States v.
(DuBay Hearing)
Question from paragraph 2(c) of AE L)(VJJ:
submitted an affidavit that he was the ex-husband of
and she and her daughter, AF [
a g a i n s t Mr.
, who stated those c l a i m s were investigated by Depa rt me nt of
Social Services (DSS) a n d were unfounded.
that Ms.
A c c o r d i n g to Mr.
was c o a c h i n g AF to make false allegations.
team not present the testimony from Mr.
17.
, DSS found
Why did the defense
?
Regarding the specific q u e s t i o n from the DuBayorder, I fi n d defense counsel made a
reasonable tactical decision to not offer testimony from Mr.
coaching.
Mr.
about possible
testified at the hearing that Tabatha had made a report to social
services and Mr.
HROT at 1 5 9 .
18.
c h a i n of command that he had assaulted and abused
At that t i m e , Mr.
said
A social worker questioned Mr.
later, Mr.
.
was three of four years o l d .
about the a l l e g a t i o n s .
Two or three weeks
c a l l e d social services a n d asked about the status of the case.
he was told the case was closed.
He said
He further stated, "What they said over the phone, the
lady told me that it seemed like she was being coached; ' s h e , ' being
coached to say what s h e was s a y i n g . "
19.
,
] , m a d e s i m i l a r c l a i m s of abuse
, was being
HROT at 1 5 9 .
Based on his testimony, I find defense counsel had good reasons not to call this
witness to testify about the alleged c o a c h i n g .
years before trial.
First, the prior i n c i d e n t occurred more than 1 0
S e c o n d , the only evidence of coaching would have been the hearsay
statement made to Mr.
by a "lady" at social services.
Protective Services,
or that
Third, records from C h i l d
do not read that
m a d e a l l e g a t i o n s that Mr.
defense c o u n s e l called Mr.
had abused her.
was coached
AE LXX.
I n short, had
for these p u r p o s e s , trial counsel could have easily
rebutted the evidence, objected on hearsay g r o u n d s , or argued that it should be given little
weight based on
20.
age at the time.
However, I find there were other areas in which Mr.
could have testified about
about
could have testified.
character for truthfulness.
m a k i n g false allegations about child a b u s e .
g o a l for using
was to, b a s i c a l l y , i m p e a c h
testimony,
MAJ
testified that, "The
, and show that she has this
history of c o a c h i n g , or making these false allegations."
Based on Mr.
He
He also could have testified
H R O T at 93 ( e m p h a s i s a d d e d ) .
made a series of false reports to his c h a i n of
command while they were g o i n g t h r o u g h a divorce.
These i n c l u d e d an allegation that he
had assaulted her (HROT at 1 6 0 - 6 1 ) and that he was not paying a l i m o n y ( H R O T at 1 6 2 ) .
This evidence w o u l d have been relevant to discredit
to make false allegations for f i n a n c i a l g a i n .
and to s h o w a possible motive
This evidence w o u l d be very s i m i l a r to the
Defense theory in this case, that Tabatha was m a k i n g false allegations for financial reasons
and out of s p i t e .
21.
At the h e a r i n g , I find defense c o u n s e l ' s reasons were insufficient for not c a ll i n g Mr .
to
pre
sent these other i s s u e s .
MAJ
described Mr.
8
as a
"b
itter
(
(
- Essential F i n d i n g s of Fact a n d C o n c l u s i o n s of Law
United States v.
(DuBay H e a r i n g )
ex-husband out for revenge, so we t h o u g h t that something like that could've been exploited
on cross-examination a l s o . "
H R O T at 95.
Based on Mr.
testimony at the
h e a r i n g , I do not believe he would have appeared to be a bitter ex-husband.
he would have c a l m l y e x p l a i n e d
Rather, I find
vindictive behavior in a way that would have
corroborated the Defense t h e o ry of the case.
Questions from paragraph 2(d) of AE LXVI/:
First Lieutenant
submitted an affidavit that he spoke to
(then
) on numerous occasions a n d made detailed memorandum of
records of these conversations.
Mr.
c l a i m s Ms.
s a i d the Army " s h o u l d
prosecute [appellant] for s o m e t h i n g , " and that s h e "intended to r u i n [appellant's] life
after their divorce."
?
Why did the defense team not present this evidence from 1 LT
Master Sergeant
submitted an affidavit that he witnessed
many, if not a l l , of the conversations between 1 LT
and Ms.
the defense team not present this e v i d e n c e from MSG
22.
.
Why d i d
?
I find that defense c o u n s e l did not have valid tactical reasons for not calling 1 LT
or MSG
23.
to testify about
statements.
I find that both witnesses w o u l d have testified in d e t a i l about
and her motives
to h u rt the a p p e l l a n t .
24.
Mr.
testified at the DuBay h e a r i n g that
would call him late at night
c o m p l a i n i n g the a p p e l l a n t was g o i n g to divorce her.
the a p p e l l a n t to be in " t r o u b l e . "
aw y with t h i s
a
prosecuted
dramaticall
(
H R O T at 1
H R O T at 1
nancial suppo
children.
H R O T at
5.
Mr
(
M
F
Rs
)
g
e
w
9
9
,
1 7 2
.
to c
.
ry
in
g
.
Mr.
I
y,
"H
7 8
.
T
h
e
s
e co
n
n other words
(
,
e s not
'
w
pp
oul
ver
was also clear that
s
"
rt
trouble
"
and were not connected to the char
s
wi
g
oin
g
to
g
et
s
swing
d
ation often took an
was discussing
e l l a n t was h u
the threats about
in
her or the
g
and prosecution
g
ed o
able to describe her an
ff
g
enses .
)
er towards
he prepared several m e m o r a n d a for records
,
th
Thes
her c l a i m that she had a
g
a
mood
1
t
remembered Tabatha and wa
includin
s
,
HROT a
a n d she d e n i e d the a
,
close in time to his conversation
,
also
ld
and that the appellant s h o u l d be
70)
I n these conversations
g ry
a n d the divorce
y
She wou
H R O T at 1
"
stack
"
e
M
FR
s
show
of evidence she would use
ainst the a p p e l l a n t .
26.
H
7
(
I n addition to his recollections
erratic behavior
a
y
1 6
clearl
.
the appellant.
).
and the divorce
rt
were about m o n e
2
7 7
calm to a n
m
h o u r or more.
fi
ect
ff
fro
y
H R O T at 1 6 9 .
or words to the e
,"
She said repeatedly that she wanted
M
s
a
r
.
id
as not
27.
I
Even
t
he
g
r
oin
found
tho
"
u
con
g
t
o
both
gh
t
he
e
s
s
tifie
d
t
hat he obse
tant theme
"
wa
s
rv
get away with divorcin
Mr.
y
an
ere
w
t
e
s
d Mr
tifyin
g
e
d
conversations between
that s h e wanted to r u i n a p p e l l a n
g
her.
3
s career
a
1
y
9
a
t he
.
ears af er the event
t
T
L
nd th
to be credible and persuasive witn
.
several
HROT at 1 5
and
t'
,
the
y
clearl
y
r
e
m
e
e
sses
.
mber
e
d
(
United States v.
(
- E s s e n t i a l F i n d i n g s of Fact a n d C o n c l u s i o n s of Law
(DuBay H e a r i n g )
a n d her extreme vindictiveness towards the a p p e l l a n t .
Both remembered her
specifically s a y i n g on m u l t i p l e occasions that she wanted to r u i n the a p p e l l a n t ' s career a n d
that a p p e l l a n t was not g o i n g to get away with it.
2 8 . R e g a r d i n g the defense c o u n s e l not c a l l i n g Mr.
it appears that this potential
witness was not listed by the a p p e l l a n t on his proposed witness list to c o u n s e l .
affidavit and in his testimony at the h e a r i n g , MAJ
stated that Mr.
interviewed by the Defense and that the a p p e l l a n t did not list Mr.
witness.
H R O T at 46.
was not
as a potential
I find that a complete interview with 1 LT
sufficient to discover that M S G
I n his
would have been
was present when
made relevant
statements.
29.
At t r i a l , Mr.
ROT at 5 2 0 - 5 3 6 .
testified in a limited m a n n e r a b o u t h i s interactions with
Regarding
.
statements, he d i s c u s s e d p h o n e conversations,
"[b]asically regarding the situation between Mr.
and Mrs.
separation, and all the aspects in that."
Mr.
ROT at 523.
a n d their divorce and
further testified that
Tabatha was concerned about m o v i n g and fi n a n c i a l s u p p o rt (ROT at 524) and elevated
these concerns to the hospital c o m m a n d e r a n d others (ROT at 525).
Following a series of
objections, defense counsel asked the following:
Q.
What did Mrs.
A.
She said it was i l l e g a l and that he wasn't going to get away with it.
ROT at 530.
say about Sergeant
plans to divorce her?
Defense c o u n s e l did not ask any follow-up questions about
statement.
Questions from paragraph 2(e) of AE LXV/1:
In regards to Mr.
, 1 LT
, and MSG
, was there any discussion
as to whether they w o u l d be beneficial as the defense's theory of the case of the
a l l e g e d victims' mother's motive to fabricate?
Ms.
30.
Why were they not asked about the
motive to encourage AF to fabricate d e s p i t e e v i d e n c e of such a motive?
I find that defense c o u n s e l did not have valid tactical reasons for not presenting
evidence of
motive to fabricate.
3 1 . At the h e a r i n g , I read paragraph 2(e) to MAJ
and asked him to r e s p o n d .
The
following c o l l o q u y occurred:
A.
Again, Your H o n o r , we discussed each one of them i n d i v i d u a l ly .
There were discussions.
But the decision - I understand that we could say that the mother has this motive - at the
time, anyway - yes, the mother had the motive to fabricate, but there was no connection
between the mom's motives and what the daughter actually reported.
Q.
Why do you say there was no connection?
10
(
(
t
United States v.
- E s s e n t i a l F i n d i n g s of Fact and C o n c l u s i o n s of Law
(DuBay Hearing)
A.
Because the daughter was adamant about never talking to her mom about what went on,
and during that brief testimony that
presented, I recall her saying that she never
talked to her daughter about the allegations, because she didn't want anyone to think that
she was coaching her.
Q.
At the time of trial, I think Andrea was 1 7 years o l d .
Is that right?
A.
Yes, sir.
Q.
So it is certainly possible. that a 17-year old would be able to lie about not discussing this
with her mother, or being coached about how this might impact Sergeant
.
Did you
consider trying to present that type of a theory to the court?
A.
Yes, sir, and ultimately, I guess we made the decision to say, let's focus on using some of
the things that she'd done to try to impeach her credibility, or call her credibility into question.
Q.
You're talking about
A.
Yes, sir.
H R O T at 139-40.
?
T h i s explanation is i n s u ff i c i e n t .
c h o o s i n g one strategy over the other.
about
There seems to be no valid reason for
Defense c o u n s e l c o u l d have presented evidence
motives to fabricate as well as evidence of
credibility i s s u e s .
These two a v e n u e s were not m u t u a l l y exclusive a n d could have established r e a s o n a b l e
doubt.
C O N C L U S I O N S OF LAW:
32.
"To prevail on an ineffective assistance c l a i m , the a p p e l l a n t bears the b u r d e n of proving
that the performance of defense counsel was deficient and that the a p p e l l a n t was
prejudiced by the error."
Strickland v.
33.
United States v.
Captain, 75 M . J . 99, 1 0 3 ( C . A . A . F . 2 0 1 6 ) (citing
Washington, 466 U . S . 6 6 8 , 698 ( 1 9 8 4 ) ) .
For the first prong u n d e r Strickland, a p p e l l a n t must show that " c o u n s e l ' s performance
fell below an objective standard of reasonableness."
379 ( C . A . A . F . 2 0 1 5 ) .
United States v. Akbar, 74 M . J . 364,
For the second prong u n d e r Strickland, the a p p e l l a n t must show that
c o u n s e l ' s "deficient performance" Jed to a " r e a s o n a b l e probability" of a more favorable result
if c o u n s e l had not m a d e the a l l e g e d u n p r o f e s s i o n a l errors.
Id.
34. I n assessing the first p r o n g , "courts must i n d u l g e a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance."
Datavs, 71
M . J . 420, 424 ( C . A . A . F . 2 0 1 2 ) .
United States v.
Courts must be " h i g h l y deferential [of counsel's
performance] a n d s h o u l d not be colored by the distorting effects of h i n d s i g h t . "
United
States v. Alves, 53 M . J . 2 8 6 , 289 ( C . A . A . F . 2000) (citing Strickland).
35.
As set forth in Strickland, strategic d e c i s i o n s made by c o u n s e l are subject to great
deference:
"[S]trategic choices made after t h o r o u g h investigation of law and facts relevant
to p l a u s i b l e options are v i rt u a l l y u n c h a l l e n g e a b l e ; and strategic choices made after Jess
than complete investigation are r e a s o n a b l e precisely to the extent that reasonable
11
(
(
- Essential F i n d i n g s of Fact and C o n c l u s i o n s of Law
United States v.
(Du Bay H e a r i n g )
professional j u d g m e n t s s u p p o rt the limitations on investigation."
466 U . S . 668, 690-91
CCA L E X I S 301
36.
Strickland v.
Washington,
( 1 9 8 4 ) , quoted in United States v. Smith, ARMY 2 0 1 2 0 9 1 8 , 2 0 1 5
(A.C.C.A. July 1 7 , 2 0 1 5 ) ( u n p u b l i s h e d ).
I n this case, I c o n c l u d e that trial defense c o u n s e l were deficient in three areas.
First,
counsel were deficient in failing to present e v i d e n c e a b o u t T a b a t h a ' s motives to e n g i n e e r
this prosecution a n d her repeated statements that s h e w o u l d make sure the appellant was
punished.
S e c o n d , c o u n s e l were deficient in failing to c o n d u c t a full investigation regarding
a n d her motives to fabricate.
a p p e l l a n t to testify.
Third, counsel were deficient in f a i l i n g to prepare the
I n each of these three areas, c o u n s e l ' s performance fell below an
objective standard of r e a s o n a b l e n e s s .
37.
Regarding evidence a b o u t
there were witnesses who would have testified
that she loathed the a p p e l l a n t and m a d e several statements a b o u t r u i n i n g the appellant's
life, making h i m pay, and p u s h i n g the Army to prosecute h i m .
None of these comments
were m a d e in the context of the charged offenses; rather, the statements were made
because of marital problems, fi n a n c i a l problems, a n d the appellant's plan to divorce
At t r i a l , defense c o u n s e l failed to show the extent of
a n d Mr.
testified at the h e a r i n g ,
vitriol.
As Mr.
made erratic d e m a n d s and threats.
This evidence was not presented at t r i a l .
38.
Regarding the failure to investigate, defense counsel had an obligation to fully
investigate the (apparently) false a l l e g a t i o n s
above,
m a d e at Fort B r a g g .
As set forth
c l a i m e d she was the victim of sexual offenses d u r i n g an Article 32 hearing
in October 2 0 1 0 .
The investigating officer concluded there was insufficient evidence to
s u p p o rt those c l a i m s and recommended charges be d i s m i s s e d .
defense c o u n s e l failed to investigate those a l l e g a t i o n s .
uncovered other witnesses to show
It is u n c l e a r why trial
An investigation could have
motive to fabricate.
accused in that case would have testified that
It is p o s s i b l e that the
had made a false a l l e g a t i o n and that
she was u s i n g the military justice system for personal g r i e v a n c e s .
39.
Regarding the failure to prepare the accused to testify, the trial defense counsel's
limited preparation of the accused fell below the wide range of reasonable professional
assistance.
Defense counsel prepared the accused to testify in a haphazard a n d last­
minute m a n n e r .
40.
Having found these deficiencies,
I considered the second Strickland p r o n g .
Regarding
the failure to prepare the accused to testify, I cannot c o n c l u d e there w o u l d be a different
result if the accused h a d testified differently or elected to remain silent.
As discussed
above, the a p p e l l a n t 's testimony was brief and did not d a m a g e the Defense case.
As a
result, there is i n s u ff i c i e n t evidence to show this deficiency prejudiced the a p p e l l a n t .
However, the deficiencies regarding Tabatha are a different matter.
41.
I find there is a r e a s o n a b l e p r o b a b i li t y of a more favorable result h a d the other
deficiencies not o c c u r r e d .
I n reviewing the record, t h i s was a close c a s e .
The c o u rt found
the accused not g u i l t y of 1 9 specifications a n d g u i l t y of o n l y 5 specifications.
12
All of the
(
(
United States v.
- Essential F i n d i n g s of Fact a n d C o n c l u s i o n s of Law
(DuBay H e a r i n g )
specifications involved
children.
The Defense had the opportunity to present
has a history of making false allegations, to i n c l u d e a history of
evidence that
making false allegations about abuse of h e r c h i l d r e n .
evidence from 1 LT
find a way to p u n i s h the accused.
or blowing off steam.
Defense counsel had access to
that
and MSG
repeatedly said she was g o i n g to
By a l l a c c o u n t s ,
was not m a k i n g vague threats
She specifically said the Army s h o u l d prosecute the a p p e l l a n t .
Defense c o u n s e l could have presented evidence that the c h a i n of command did not
accommodate her d e m a n d so she pressured her c h i l d r e n to make false allegations.
42.
As a final matter, I recognize that in some cases it would be a valid tactical decision to
avoid this l i n e of i n q u i ry .
As MAJ
stated at the h e a r i n g , there can be a risk that an
accused a n d his former spouse are " d r a g g e d t h r o u g h the m u d
accused's credibility.
g
o n g t h r o u g h a di
i
the a
pp
three
y
ff
HRO
T at
66
icult divorce.
grounds
T
r
e
h
i
s
I
E
g
ations a
e
v
n s e l co
g
LXXV
a ns
i
ff
1 1 .
x
ual c
enses o c
c
ch
a
e
32
r t
h
e
investi
A
de
c
isi
ap
p
ellant.
m
in
t
c
g
ation.
rticle
32
on not to pre
.
W
was not
a k i n g false a l l e g a t o n s .
i
A rt
icle
A
E
ffi
32
I
n
O
ctober
l
s
ex
r
at 2
L XX V I I
l u d i n g ch ld a b
i
u
s
,
e
3
.
Y
ea s earlier
r
al egations
l
W
y
i
ent e
vi
i n c l u d i n g Mr.
hen she was aggrieved b
hen that failed
,
,
p p
o
rt
this th
M
13
e
ilita
o
the a
ry
ry
J
a
l
u
p
pel ant
l d no
c
w
l
t
c
hildren
as def
udge
t
d
,
s
h
.
ic
T
h
ien
e
t
e
he
l a i m to
201
O
(j u s t
p
etrated by
l
s h e made
.
f
process in
an
s h e knew s h e c o
so s h e h a d to use her
dence to s u
in
use
enge on
reasonab e
"
,
po
claiming she
,
ual contact per
cer found there we e not
v
the
rt
ust a s
pretrial investigation
i
,
j
hat s h e intended to get re
would have created a c o m p e l l n g theory o
investigat on
s
which can then h u
,"
,
ld have argued that Tabatha has abused the c r i m
in of c o m m a n d
afte
case
is
ntact a n d wrongfu
urred.
Mr.
t
o
venge on men who have wronged her
Articl
of
ry
The investigating o
idence about
u
in th
testified in an
to believe the o
"
false alle
A
,
i
),
i
ou
owever
There was e v d e n c e
had been the vict m of a b u s i v e s e
C
H
ellant and that s h e had a histo
ears before trial
another S o l d i e r .
43.
.
S
t
r e
i
be
def
and
ol
the cas
o
rde
dier
d
to
r
r
f
om
pull
a v c im s
i
e
n
p
re
s
e
e.
to
t
i
g
n
o
h
s
counsel
judiced
et
the
i
s
oon
'
s
the