Monday, December 10, 2007

Another Air Force certificate of review

Today's daily journal update includes a certificate of review from the Judge Advocate General of the Air Force that was docketed on Friday:



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The Air Force Court's unpublished per curiam opinion in the case is available here.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.


John O'Connor said...

The AFCCA disposition seems weird. The accused didn't raise pretrial punishment below, so the government presented no evidence on the issue below. On appeal, the accused apparently drops in an affidavit and the government does nothing more than attack his credibility. The AFCCA concludes that the government might have won the issue at trial if the defense had raised it, but then remedies the perceived IAC by giving additional confinement credit, because the DC might have been incompetent on an issue where the accused (by AFCCA's admission) might have been entitled to no relief. It seems that the worst-case scenario for the government would be a remand to litigate the issue the defense failed to raise the first time around.

Of course, I wouldn't blame the government if it took the position, in appropriate cases, that it would rather give credit than do a remand. But I just don't see how awarding credit on appeal here, rather than a DuBay hearing, can be appropriate in the absence of a specific government request.

Am I missing something?

Phil Cave said...

And what did the client say to the MJ when the MJ asked, as they do these days, "Have you been punished in any way before trial?" And what did the defense counsel at trial say when the MJ asked, "Counsel, do you agree?"

Dwight Sullivan said...

My Liege,

I believe that the Air Force Court's opinion expressly indicates that the military judge failed to ask the accused himself whether he was subject to illegal pretrial confinement. That question was posed only to his counsel.