Dirk J. Thompson Senior Airman U.S. Airforce Convicted Sex Offender Forcible Sodomy Against A Child

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Name: Dirk J. Thompson

Case: United States v. Thompson No. 98-0594/AF

Date Of Appeal: December 17, 1998

Plea: Guilty

Charges: Forcible sodomy against a child

Military Branch: U.S. Airforce

Listed In National Sex Offenders Registry? NO

On December 17, 1996, appellant was tried by a military judge sitting alone as a general court-martial at Mountain Home Air Force Base, Idaho. In accordance with his pleas, he was found guilty of committing forcible sodomy against a child under the age of 16, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. See para. 51b and d(2), Part IV, Manual for Courts-Martial, United States (1995 ed.).

He was sentenced to a dishonorable discharge, confinement for 48 months, forfeiture of all pay and allowances, and reduction to E-1. On March 25, 1997, in accordance with the terms of appellant’s pretrial agreement, the convening authority reduced the term of confinement to 30 months but otherwise approved the sentence. On February 5, 1998, the Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court granted review on July 20, 1998, on the following issue assigned by appellant:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL DEFENSE COUNSEL’S INADEQUATE PRETRIAL ADVICE AND CONFLICT OF INTEREST.

We hold that a pretrial complaint against defense counsel, made by appellant’s wife, did not create a conflict of interest disqualifying him from further participation in this case. See United States v. Cornelious, 41 MJ 397 (1995). We also hold that appellant was not denied effective assistance of counsel when military defense counsel cautioned him about retaining civilian counsel and discouraged him from getting help from a psychologist. See United States v. Montoya, 13 MJ 268, 275 n.3 (CMA 1982); United States v. Mansfield, 38 MJ 415, 418 (CMA 1993).

Military law did not recognize an accused-psychologist privilege at the time of appellant’s trial in 1996. See Mil. R. Evid. 501(d), Manual, supra; cf. Mil. R. Evid. 706. Moreover, appellant had not yet pleaded guilty, and his disclosures to a psychologist could possibly have been used against him. See Mansfield, 38 MJ at 418. While appellant was faced with a difficult decision to acquire treatment at the expense of confidentiality (see Bordenkircher v. Hayes, 434 U.S. 357 (1978) (criminal defendants face hard choices)), his defense counsel’s recognition of this peril hardly constituted ineffective assistance.

Finally, civilian counsel’s post-trial submissions raise a related question whether military defense counsel should have disregarded this self-incrimination peril and sought favorable defense psychological evidence for sentencing. In this regard, we note that appellant subsequently pleaded guilty, and after trial, a mental health professional did provide some favorable defense evidence in his report. In particular, he reported appellant’s own sexual molestation at the age of 11 and gave his opinion that appellant had "very good rehab potential . . . [and he] should prove to be an excellent therapy candidate." However, evidence of appellant’s prior molestation was presented at his court-martial, and numerous lay witnesses testified to his otherwise good character. In our view, defense counsel’s advice, i.e., to avoid unprivileged medical assistance, was a reasonable tactical decision which we will not second-guess. See generally United States v. Bray, 49 MJ 300, 305 (1998); cf. United States v. Clark, 49 MJ 98, 100-01 (1998).

The decision of the United States Air Force Court of Criminal Appeals is affirmed.