HUNTSVILLE, Ala. -- The conviction of a former Country Day School coach on child sex charges may not have happened, or would likely have been overturned on appeal, if his lawyer hadn’t made multiple errors, a former Alabama chief justice argued in a Monday court filing.
Brett Naff was convicted last year of sodomy by forcible compulsion and deviant sex with a child under 12. He was sentenced to a 20-year prison term. Under Alabama law, the child sex charge requires the sentence be served day-for-day, with no early parole.
Former Alabama Supreme Court Chief Justice Sue Bell Cobb said Naff received constitutionally inadequate representation and his appeal chances were compromised because of errors by his trial attorney.
The case against him stemmed from alleged incidents dating from 2004 to 2007. Naff’s accuser came forward seven years after the alleged incidents and there was no physical evidence in the case.
The accuser testified Naff forced her to perform sexual acts beginning in 2004. She said it began when she was 11 and continued until she graduated from 8th grade in 2007. She claimed the incidents took place in a room used by the soccer team, in a school van, on trips and around soccer practices.
The defense maintained the accuser was lying and said her testimony was contradicted by a number of witnesses.
Naff’s direct appeals were denied, but his attorneys have filed a post-conviction appeal that focuses on errors made during his June 2014 trial.
Cobb submitted an affidavit as part of Naff’s latest appeal, arguing that Naff’s trial attorney, Bruce Gardner, “committed a vast number errors that prejudiced Mr. Naff at trial and on direct appeal.”
Cobb focused on Gardner’s failure to object to “character evidence” presented by witnesses during the trial that described Naff dealing harshly or cruelly with other Country Day students. She said the “vast majority” of the “bad acts” testimony should not have been before the jury at all, that it was highly improper and inadmissible.
“Again, I believe counsel should have objected dozens of times throughout this trial, which, I believe, would have brought relief at trial,” Cobb wrote. “This cannot be considered a tactical or strategic decision as trial counsel could have preserved a record of his objections outside the presence of the jury. Even if timely objections at trial had not brought relief, I am of the opinion that properly preserved objections would have brought relief on direct appeal to the Court of Criminal Appeals.”
Prosecutors had argued the testimony from other students highlighted the culture of intimidation fostered by Naff. They argued that intimidation illustrated the “forcible compulsion” element of the sodomy charge.
Several former students and their parents also testified on Naff’s behalf, praising his dedication, teaching and coaching.
Naff’s Monday petition included an affidavit from Birmingham criminal defense lawyer David Luker, a 15-year instructor at the Birmingham School of Law.
Luker wrote in his affidavit, “It is my expert opinion that the State of Alabama presented inadmissible character evidence and improper evidence of Mr. Naff's prior bad acts ...” by eight witnesses. Luker said prosecutors also failed to give the defense proper notice regarding the testimony concerning bad acts.
Luker wrote the trial’s outcome and appeal would have been different if Gardner had filed the proper objections.
Both Cobb and Luker said they reviewed the trial transcript. Cobb also said the trial court improperly instructed the jury in considering the evidence of prior bad acts.
Naff wants the guilty verdict and sentence thrown out and a new trial. He is currently in the Madison County Jail.