CAAF Preview: United States v. Scott

​On Tuesday November 17, 2020, CAAF will hear oral arguments in 
United States v. Scott
 
CAAF granted review on the following issue: WHETHER APPELLANT HAD RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN THE PRESENTENCING PHASE OF HIS TRIAL.
 
CAAF briefs here.

     Major Jason Scott was convicted by a military judge sitting as a general court-martial pursuant to his pleas, of one specification of adultery and one specification of failure to obey a lawful order, in violation of Articles 92 and 134, UCMJ. The military judge sentenced appellant to forfeit $3000 pay per month for three months, to be restricted to post for thirty days, and to be dismissed from the service. The convening authority approved the findings and the sentence. 
 
     On appeal, ACCA affirmed the findings but not the sentence, and ordered a Dubay hearing. After the Dubay hearing, ACCA affirmed Appellant’s findings and sentence, and subsequently denied reconsideration. Appellant now appeals to CAAF.
 
PERTINENT FACTS
     Appellant and Mrs. HM engaged in a sexual relationship after meeting at an on-base gym at Joint Base Lewis-McChord, initially, Appellant did not know that Mrs. HM was married. Mrs. HM’s husband, SFC AM, was deployed to Afghanistan when Mrs. HM’s relationship with Appellant began. After learning that Mrs. HM was married, Appellant continued the relationship and even introduced her as his girlfriend to COL MH, his supervisor. COL MH, after learning that Mrs. HM was married to a deployed soldier, ordered Appellant in writing to “cease and desist all contact” with Mrs. HM. However, Appellant did not end the relationship and continued his affair with Mrs. HM.
 
   Appellant was charged with adultery and disobeying a lawful order from a superior commissioned officer. Appellant submitted an offer to plead guilty to adultery and of violating a lawful order, after advice from defense counsel. 
 
ACCA’S DECISION
 
     The Army Court of Criminal Appeals (ACCA) affirmed the military judge’s finding and sentence and denied a motion for reconsideration.
  
THE ARGUMENTS
 
    Appellant argues that Trial defense counsel’s performance in the presentencing phase was deficient, and that he was prejudiced by their deficiency. Even though character witnesses testified on Appellant’s behalf, Appellant argues that there were five additional character witnesses that his trial defense counsel did not call to testify on his behalf. Additionally, Appellant argues that his trial defense counsel did not present extenuating or mitigating evidence, and that their failure to do so resulted in him being dismissed from the service.
 
    On the other side, Appellee argues that Appellant’s trial defense counsel was not deficient because there was nothing defense counsel could have done to mitigate Appellant’s sentence. In support of this argument, Appellee cites witnesses that did testify on behalf of Appellant, and ACCA which note that “all [of these witnesses] gave a middling assessment of appellant’s performance, and none could testify about MAJ Scott’s service that predated his misconduct.” Given this, Appellee argues that Appellant did not have deficient counsel. 

Peter-gaye Howell

Intern