United States v. Tornowski

29 M.J. 578, 1989 CMR LEXIS 772, 1989 WL 114506
CourtU S Air Force Court of Military Review
DecidedSeptember 28, 1989
DocketACM 27155
StatusPublished
Cited by11 cases

This text of 29 M.J. 578 (United States v. Tornowski) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tornowski, 29 M.J. 578, 1989 CMR LEXIS 772, 1989 WL 114506 (usafctmilrev 1989).

Opinion

DECISION

LEWIS, Senior Judge:

The appellant, a ten year veteran of the Air Force, was tried before a military judge, sitting alone. He was found guilty, despite pleas of not guilty, of raping E.F., a seven year old female child, at divers times during a period from 19 June 1987 until 13 July 1987. The adjudged sentence consisted of a dishonorable discharge, confinement for 20 years, forfeiture of all pay and allowances and reduction to airman basic. This sentence was approved by the general court-martial convening authority.

The appellant argues that he “was denied military due process when he was denied expert consultants in psychology at the Article 32 and at the trial on the merits.” The appellant was not in fact entirely denied the assistance of expert consultants before trial. Commendably, the special court-martial convening authority directed that a security police investigator be appointed to assist the defense in response to one request. He also indicated that the defense might have the services of an Air Force gynecologist in response to another aspect of the same request. The defense subsequently requested the services of a named expert in child psychology, an active duty officer assigned to another command. When it became apparent that the first expert was not available to assist, the defense requested that a second expert, an Air Force Reservist not then on active duty, be detailed to provide consultant services. The defense also requested the services of a civilian expert in pediatric gynecology by name. In response to the latter two requests, the special court-martial convening authority determined that the defense had not made a sufficient showing of necessity.

With respect to the pretrial defense requests, we note that a request for the services of a consultant differs from a request that a specific expert witness be produced for the defense. When the defense seeks to have the Government provide a consultant, it has no right to demand that a particular individual be designated. Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53, 66 (1985) (criminal defendant’s right to a competent psychiatrist does not include “a constitutional right to choose a psychiatrist of his own personal liking”), cited with approval in United States v. Mustafa, 22 M.J. 165, 169 (C.M.A.1986), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). For a recent application of the rule, see United States v. Provost, 875 F.2d 172, 175 (8th Cir.1989). The larger issue we face is whether the defense sufficiently demonstrated that it required certain consultant services to provide an adequate representation for the appellant.

At trial, defense counsel persisted in the request that a child psychologist be appointed to assist in the appellant’s defense. Following a hearing, the military judge concluded that the defense had not adequately demonstrated the necessity for the appointment of an expert consultant in child psychology. Notwithstanding this conclusion, he ordered that three persons, a psychiatrist, a social worker and counsellor with experience in child abuse matters and an OB/GYN nurse practitioner, be made available as confidential consultants to the defense team. As we interpret the defense position at trial, they were not satisfied either with the expertise of these particular consultants as it related to the case to be tried or that the military judge provided them enough time to develop meaningful defense tactics with the assistance of the consultants provided.

[580]*580The defense, in an appropriate case, is entitled to the appointment and confidential assistance of expert consultants either provided by or paid for by the Government based upon a defense “demonstration of the necessity for the services.” United States v. Garries, 22 M.J. 288, 291 (C.M.A.1986), cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986). Surprisingly, there has been very little development of the subject of defense access to expert consultants in appellate military law beyond the bare bones of the necessity test enunciated in Garries. We might be able to draw two somewhat contrary inferences from this fact: (1) trial defense counsel have not generally found it necessary to request the services of expert consultants; or, (2) reasonable pretrial requests for appointment of expert consultants have generally been granted. See e.g., United States v. Turner, 28 M.J. 487 (C.M.A.1989), which is also instructive in explaining at least one critical difference between a defense consultant and a defense requested expert witness. See United States v. True, 28 M.J. 1057 (N.M.C.M.R.1989), which explores this important differentiation in more detail.

The Army Court of Military Review has opined that a defense counsel must present the military judge with more than an “inkling” that expert assistance is required. United States v. Kinsler, 24 M.J. 855, 856 (A.C.M.R.1987), pet. denied, 27 M.J. 21 (1988). The Navy-Marine Corps Court of Military Review, in reviewing a defense request for the services of an investigator, in United States v. True, supra, has suggested that the key to a successful defense demonstration of necessity is a plausible showing that the expert could provide information that the defense and its staff would not be able to obtain on its own. The Court’s rationale was based partially on language in a leading federal case, Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987), as follows:

We recognize that defense counsel may be unfamiliar with the specific scientific theories implicated in a case and therefore cannot be expected to provide the court with detailed analysis of the assistance an appointed' expert might provide. We do believe, however, that defense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense’s case.

There is little question that child sexual abuse cases often present a fertile, indeed, a necessary, area for expert assistance. United States v. Tolppa, 25 M.J. 352, 355 (C.M.A.1987); United States v. Nelson, 25 M.J. 110, 112-113 (C.M.A.1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988); United States v. Snipes, 18 M.J. 172, 179 (C.M.A.1984). Particularly when, as in this case, the prosecution utilizes the assistance of experts, the defense can make a valid and plausible argument for expert assistance of its own to aid in properly evaluating the factual issues and providing adequate legal representation for an accused. Based on certain of his remarks from the bench, the military judge initially appeared skeptical that the defense was citing areas of concern which were beyond the comprehension of those with lay knowledge. From our review of the record, the defense team in this case articulated a number of areas in which a child psychologist might have provided valuable insights and guidance.

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Bluebook (online)
29 M.J. 578, 1989 CMR LEXIS 772, 1989 WL 114506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tornowski-usafctmilrev-1989.