The Sixth Amendment to the US Constitution guarantees the assistance of counsel to criminal defendants. Over the years, case law has developed regarding the level of competence required of defense counsel in order to meet the constitutionally-mandated assistance. The US Supreme Court case of Strickland v. Washington is the seminal case in this area. In order to find that an accused received ineffective assistance of counsel (IAC), a reviewing court must find that: 1) the counsel’s performance was deficient; and 2) the deficient performance prejudiced the defendant. An attorney’s performance is deficient where it falls measurably below the performance expected of ordinary lawyers. Strategic decisions generally cannot be questioned but failures to investigate defenses or areas of law or failures to make motions that would have been successful are examples of deficient performance.
The Army Court of Criminal Appeals (ACCA) recently issued its opinion concerning an allegation of IAC in United States v. Wordlaw. SPC Wordlaw was charged with, and convicted of, sexually assaulting a woman with whom he’d been in a relationship for several months before the alleged assault. He was sentenced to a dishonorable discharge and ten years confinement. At trial, the woman testified that she was very intoxicated at the time of the alleged assault and did not remember much of what happened. The Government introduced text messages between the two in the days leading up to the alleged assault in which SPC Wordlaw discussed sexual activities he wanted to engage in and the woman expressed her reluctance to do so. On appeal, SPC Wordlaw argued that his attorneys were deficient because they failed to introduce evidence that the two had engaged in the same type of sexual activity in the same location on several occasions before this. They also failed to introduce text messages sent by the woman the same day as the alleged assault in which she said that she DID want to engage in the proffered sexual activities with him that night. The defense attorneys also failed to request an expert witness to testify concerning the alleged victim’s level of intoxication and the effect of alcohol on formation of memories.
The ACCA agreed that SPC Wordlaw’s attorneys performed at a level measurably below that expected of a defense attorney. The Court noted that the failures of the defense attorneys allowed the Government to establish the narrative and severely limited the defense’s ability to counter it. At one point, the members asked the alleged victim about previous sexual behavior between the two, indicating that they may be open to considering such evidence on the issue of consent or a defense that SPC Wordlaw reasonably believed the alleged victim had consented. Yet, the defense still failed to make any attempts to introduce this evidence. The lack of history and context about the relationship between the two undercut the defense at every turn. Additionally, the failure to introduce expert testimony regarding the alleged victim’s alcohol use and claimed memory lapses prevented the defense from further establishing either consent or a reasonable mistake of fact as to consent.
Along with the deficient performance, the ACCA determined that the defense attorneys’ failures severely prejudiced SPC Wordlaw in his court-martial and led to his conviction. The Court set aside both the conviction and sentence. SPC Wordlaw could be tried again, if the Convening Authority refers it to court-martial for a rehearing.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.