A divided military appeals court panel upheld yesterday the conviction of Pvt. Lindsey Scott, a black marine sentenced to 30 years hard labor for the rape, sodomy, abduction and attempted murder of a white woman at Quantico Marine Corps base in 1983. The decision was 2 to 1.
The case of Scott, a 30-year-old husband and father whose service record was unmarred before the attack, attracted national attention from civil rights groups, which charged the Marine Corps with racism in handling the case.
In refusing to set aside the verdict on grounds of ineffective counsel, Judge Michael D. Rapp of the U.S. Navy-Marine Corps Court of Military Review wrote that despite his "misgivings" about the performance of the defense attorney at the court-martial, the evidence against Scott was so strong that he would have been found guilty anyway.
Rapp was joined in the decision by Judge John E. Grant Jr.
In dissent, Judge John W. Kercheval II, the senior member of the three-judge panel, said the lapses of Scott's original lawyer, Ervan E. Kuhnke Jr. of Dumfries, were "nothing short of astounding," and included failing to adequately investigate the case or interview "an apparently iron-clad alibi witness."
The witness, Cynthia Ausby, a former store detective, testified at a hearing last year that she had seen Scott at a Zayre department store miles away when the assault took place. That testimony contradicted her statements at the October 1983 court-martial, when she said she was unsure of the date she had seen Scott. She said Kuhnke had not talked to her before the court-martial, and that she had become confused about the date.
Scott's lawyers immediately appealed the decision to the three-judge U.S. Court of Military Appeals, the highest court that considers only military cases. "This case will be over when hell freezes over," declared John F. Leino, Scott's chief attorney. Scott is serving his sentence at Fort Leavenworth, Kan.
In a brief written statement, Scott's lawyers called the majority's 12-page decision "intellectually insupportable."
"When defense counsel fails to do his job," they said, "obviously the government is able to overpower a jury with the prosecution's side of the story."
In the majority opinion, the two judges contrasted the victim's "credible testimony" with Scott's own statements during the court-martial, which they said contained several lies and reflected "a guilty mind" and Scott's "desperate attempt to avoid conviction and punishment . . . . "
The judges also cast doubt on the credibility of the alibi supplied at a hearing last year by Ausby, calling her original testimony at the court-martial "less than candid."
The judges argued that Scott had to prove that the verdict would have been different if his lawyer had not made mistakes. They concluded that the evidence against Scott amounted to "strong proof of guilt" that would not have been outweighed by better legal representation.
Scott became a suspect in the case almost immediately after the victim, the 23-year-old wife of a military policeman who worked with Scott, told investigators she had been lured from her apartment the night of April 20, 1983, by a telephone call from a man who said her husband had been in an accident.
The caller, who said he was from the Quantico base's criminal investigation division -- Scott's unit -- met her in his car minutes later, and said they were going to the hospital.
Instead, she testified, he drove her to a remote area on or near the base where he raped her, choked her, stabbed her in the neck and slashed her throat. She said he laughed "in a weird way," then drove off. The victim was found wandering on the base that night, bleeding and dazed.
The victim identified Scott as her assailant twice, first from a group of photos and then from a lineup, but both times said other men in the groups looked similar. In interviews with investigators while she was in the hospital, she described the interior of Scott's car in detail.
The evidence against Scott, who has maintained his innocence from the outset, was largely circumstantial. Prosecutors offered no conclusive medical proof to corroborate the woman's testimony that she had been raped and little physical evidence tying Scott to the crime. The knife used in the attack was never found and there were no witnesses.
Civil rights groups, including the NAACP and the Southern Christian Leadership Conference, charged that military authorities at Quantico, seeking a speedy resolution of the case, arrested Scott because he was black. The groups say the top brass at Quantico signaled the all-military jury to convict Scott. The Marine Corps has strongly denied the charges.
Scott's wife, Lolita, who accompanied his lawyers to the Washington Navy Yard yesterday to pick up the decision, seemed dejected. "We know we're going to win in the end," she said.