New ACCA decision

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:


We have considered the original record and appellate filings, appellant’s affidavit, the trial defense counsel’s affidavit, and the briefs of appellate counsel. We hold that appellant has failed to demonstrate that his trial defense counsel’s performance was deficient. Accordingly, we affirm the findings and sentence.

This case is a reminder for not putting the cart before the horse:  it is not that the appellant lost at trial, but how and why he lost.  Here appellant did not lose because of his counsel but because of bad facts and competing expert opinions, as well as the law.

[Counsel] marshaled the facts at his disposal, presented them in a coherent fashion, exploited uncertainties in the law that lay at the heart of the legal issue in the case, and fully explained to appellant that, while legally and factually feasible, the defense was a “long shot.” See United States v. Ingham, 42 M.J. 218, 224 (C.A.A.F. 1995) (stating that when analyzing allegations of ineffective assistance of counsel, “[o]ur first point of inquiry is whether counsel had a reasonable trial strategy – one supported by the law and evidence.”)

How many times have we had to use those words, “yes that’s a defense, but it’s a long shot.”

Appellant turned down a negotiated PTA, plead not guilty, and presented his case to a Members panel.  His defense was lack of mental responsibility.  He had a really qualified expert who supported his theory [n.1] and an under-qualified 706 examiner who had hardly read much of the materials and evaluations.  Unlike the defense expert, the 706, as usual (and as testified to as common with R.C.M. 706 evaluations) did no independent testing, did not read the reports and data of the defense expert, and based the opinion on a two hour meeting with the appellant).  [n.2] And appellant was convicted.  His IAC claim boils down to his being given bad or wrong advice about his defense of lack of mental responsibility.  Essentially appellant claims his counsel assured him he would be acquitted which is why he rejected the PTA and plead not guilty (a pointed rejected by the defense counsel), and he further alleged that his counsel told him that his mental state would be inconsistent with a guilty plea and a guilty plea would not be accepted by the judge.

Therefore, considering the specific nature of the mental responsibility evidence in this case, MAJ M was not deficient in advising appellant he “would have trouble pleading guilty . . . if [he] wanted to [introduce] the mitigating evidence of [appellant’s] mental condition at the time . . .” More specifically, if appellant pled guilty, evidence that “Dr. Deporter had noted his schizotypal traits and impaired logic and reasoning at the time of the offenses . . . [and] that she expressed concerns about his ability to appreciate the wrongfulness of his actions . . . would undoubtedly call his providency to the plea into question.”

Here this case presents a not uncommon problem for trial defense counsel.  You have evidence that could, if believed, raise a defense.  However, counsel determines that the defense is unlikely to succeed.  But at the same time, counsel is aware that that same evidence will likely cause a military judge to reject a guilty plea if presented in sentencing.

The case is a decent primer on representing and defending mental responsibility issue loaded cases.  And another confirmation for what defense counsel already know, that R.C.M. 706 “evaluations” are often perfunctory and fail to adequately inquire.


n.1.  Dr. D’s opinion, it was the first time in her thirty years of practice that she had concluded that a subject was not mentally responsible.

n.2.  Doctor Barry described that [during only his third 706 and first time testifying], in conjunction with his evaluation of appellant in September 2005, he reviewed “a packet of information from the attorneys,” and interviewed appellant for two hours. Doctor Barry did not perform any psychological or psychiatric tests on appellant, and he explained that such testing is not routinely conducted for sanity boards. He did not examine Dr. Deporter’s case file on appellant, to include her observations of him near the time of the offenses and the results of the psychological testing she conducted a short time later in the summer of 2004. He was unaware of appellant’s combat experiences [and the very extensive PTSD related evidence].  Slip op. at 7 (emphasis added).