WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING TRIAL DEFENSE COUNSEL INEFFECTIVE.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN REJECTING TRIAL DEFENSE COUNSEL'S AFFIDAVIT AS UNTIMELY.
United States v. Melson, __ M.J. ___, No. 08-5003/AF (C.A.A.F. Dec. 7, 2007).
The Air Force Court's unpublished per curiam opinion in the case is available here. United States v. Melson, No. ACM 36523 (A.F. Ct. Crim. App. Sept. 14, 2007) (per curiam). The Air Force Court ruled that Staff Sergeant Melson had received ineffective assistance of counsel due to his trial defense counsel's failure to challenge the legality of his pretrial confinement.
This case involves yet another airman held in pretrial confinement at a sub-par civilian jail -- this time Georgia's Lowndes County jail. Applying the Ginn factors, the Air Force Court held that Melson had presented sufficient facts to raise the issue of whether his trial defense counsel should have litigated the lawfulness of his pretrial confinement. The court emphasized that his allegations were unrebutted by any facts put forward by the Government. The court observed:
It is possible that the government could have met the burden [of demonstrating lack of illegal pretrial punishment] at trial if the trial defense counsel had raised the issue in that forum. Both sides could have presented evidence in support of their respective positions. However, it was not raised at trial and only the appellant has submitted information in support of his claim to this Court. It is, of course, possible that no evidence was presented at trial because trial defense counsel appropriately determined that the issue had no merit. However, that would merely be speculation on our part. Trial defense counsel is as silent on the issue before this Court as she was at trial. Although the government's argument attacking the appellant's credibility has some merit, it is, by itself, insufficient to prevail. The facts alleged may have resulted in relief for the appellant if they had been brought up during trial.
Id., slip op. at 7.
The Air Force Court remedied the IAC by awarding Melson 142 days of additional pretrial confinement credit.
I understand that at some point after the Air Force Court released this opinion, the Government offered an affidavit from the trial defense counsel, but the Air Force Court rejected it. That appears to be the basis for the second certified issue.