An appellate case's unusual trajectory

When we recently surveyed the relief rate for cases decided by AFCCA in calendar year 2007, one of the cases in which the court granted meaningful relief was United States v. Melson, No. ACM 36523 (A.F. Ct. Crim. App. Sept. 14, 2007) (per curiam). SSgt Melson received a sentence that included 12 years' confinement and a DD for a Whitman's Sampler of offenses ranging from possession of drug paraphernalia to attempted voluntary manslaughter for firing several birdshot-filled 12-gauge shotgun shells at his victim. (This resulted in AFCCA's wonderful line that "birdhsot can be lethal to more than just birds." Id., slip op. at 4.)

One of SSgt Melson's many offenses was bigamy and another was making a false official statement about his marital status on a Georgia state marriage license application. Not surprisingly, AFCCA held that the statement to a Georgia court clerk wasn't "official" and set aside the 107 conviction. The court reassessed the sentence and lopped 8 months off the 12 years of confinement, thus providing very meaningful relief. (To once again quote ex-Governor Rod Blagojevich, getting out of prison eight months early "is a [expletive deleted]ing valuable thing.")

After shooting down a factual/legal sufficiency challenge to the attempted manslaughter conviction, AFCCA turned to an IAC claim. Melson argued that his trial defense counsel should have raised an illegal pretrial punishment claim but didn't. Melson submitted a detailed affidavit painting a bleak picture of the county jail where he was held pretrial. The government submitted no counter-affidavit. AFCCA found IAC due to the trial defense counsel's failure to seek additional sentence credit. The court remedied the error by awarding 142 days of Suzuki credit.

Having failed to obtain and present an affidavit during the initial litigation before AFCCA, the government then obtained an affidavit from the trial defense counsel and sought reconsideration, which AFCCA denied. The Judge Advocate General of the Air Force then certified the case to CAAF, which reversed the Air Force Court, holding that it couldn't rule on the IAC claim until it had first "order[ed] a response from the trial defense counsel as to the allegations." United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008). As I've previously noted, I'm not a fan of CAAF's Melson opinion, which seems to encourage and reward government sandbagging and, darn it, sandbagging is the defense's job.

In Melson, CAAF "set aside" AFCCA's opinion. Today AFCCA issued its replacement opinion. United States v. Melson, No. ACM 36523 (f rev) (A.F. Ct. Crim. App. Feb. 12, 2009) (per curiam). The replacement opinion reached the same result as to the false official statement charge and provided the same remedy. But this time, there was no extra 142 days of credit due to the pretrial confinement conditions. In rejecting the IAC claim, AFCCA concludes that "[s]ome of the appellant's assertions are corroborated (co-mingling of prisoners, lack of socks and undergarments, and lack of legal resources at the facility), others are contradicted (lack of medical treatment and lack of any legal resources), and others are merely speculative or conclusory (extreme temperatures, harassment by a security guard, and being transported in prison garb)." Id., slip op. at 7. Okay, so several claims are corroborated and a couple are contested -- which means that AFCCA can't reject them on the basis of conflicting affidavits. And how "extreme temperatures, harassment by a security guard, and being transported in prison garb" can be dismissed as "speculative or conclusory" is simply beyond me. For example, AFCCA's original opinion tells us that Melson claimed that the temperature in the county jail exceeded 100 degrees in the summer and was extremely cold in the winter due to "terribly poor" heating units, broken windows, inadequate clothing, and denial of underwear. How is that claim either "speculative or conclusory"? The original panel opinion also says Melson indicated that he wasn't allowed to change out of prison garb when he went to the Air Force base for legal appointments. Again, how is that claim either "speculative or conclusory"?

Ah, here's something that is conclusory. AFCCA concludes: "Returning to the Strickland test for ineffective assistance of counsel, we find the appellant has failed to meet his burden and the trial defense counsel was not ineffective. Assuming trial defense counsels' [sic] conduct was deficient, we find no prejudice." Id., slip op. at 7. Why? I have no idea.

The Melson case has already been scrutinized by military appellate courts three times. Here's hoping for a fourth.