When it rains, it pours (literally if you’re in the D.C. area). Here’s a link to a published ACCA opinion that just showed up on the court’s web site. United States v. Gunderman, __ M.J. ___, No. ARMY 20080239 (A. Ct. Crim. App. Apr. 30, 2009).

Gunderman is ostensibly a case about ineffective assistance of counsel, but seems to be more a case of ineffective assistance of client. Specialist Gunderman’s appellate defense counsel raised an IAC issue, asserting that the trial defense counsel had failed to advise Gunderman that he could seek waiver and/or deferment of automatic forfeitures. The assignment of error was accompanied by an unexecuted affidavit from the appellant. Appellate defense counsel indicated that a signed and notarized version would be filed when received. But counsel never received a signed version, so ACCA understandably refused to consider the unexecuted affidavit. ACCA made clear that even when dealing with Grostefon issues, factual assertions must be appropriately documented.

Judge Conn wrote the opinion for a unanimous panel.

11 Responses to “Published ACCA decision”

  1. Anonymous says:

    No matter how good the attorneys- some clients just will not cooperate.

  2. Christopher Mathews says:

    There’s always the possibility that the client refused to sign the affidavit because the assertions contained therein were false … in which case, the client should be commended for his integrity.

  3. Phil Cave says:

    Huuuum, client lying to his lawyer — in the beginning.
    Or did he drop out of sight as some often do and can’t be tracked down.

  4. Dwight Sullivan says:

    JMTGst, as Phil Cave suggests, Gunderman’s appellate defense counsel almost certainly raised the issue because Gunderman told him that his trial defense counsel didn’t properly advise him. While it’s good that Gunderman didn’t sign a false affidavit, the issue wouldn’t even have arisen if Gunderman hadn’t represented to his appellate counsel that the contents of the affidavit were true.

  5. Christopher Mathews says:

    I agree that the appellant was almost certainly the source of the information in the unsigned affidavit. It’s not uncommon in my experience for someone to tell a lawyer a story, and then get cold feet about telling the same story under oath. I expect that’s what happened here, and didn’t mean to imply otherwise; when I said the appellant should be commended for his integrity, my tongue was firmly in cheek.

    Air Force trial judge Don Plude had a saying (which I’m forced to paraphrase, as I don’t recall it verbatim) that went something like this: “To lie to your parents is bad. To lie to your clergyman is a sin. To lie to your lawyer is insane.”

  6. Anonymous says:


  7. Phil Cave says:

    Chris, there must be some British blood in your veins, and all mine must have evaporated not to have recognized the humor.
    I too have heard Don Plude expound similarly and I think your paraphrase isn’t too far off the mark.

  8. Anonymous says:

    Generally speaking, what complete waste of taxpayer money – Grostefon needs to be reversed. But, on the other hand, if your like the federal government and don’t have to balance your budget: What the heck! It’s just chump change.

  9. Anonymous says:

    If you think Grostefon submissions are bad you should see how most attorneys write…

  10. Anonymous says:

    I don’t think the biggest problem with Grostefon is the waste of time (there have been Grostefon issues on which the defense has prevailed).

    Instead, I’ve always believed Grostefon actually violates the accused’s right to effective assistance of counsel. You’re either represented or not: don’t go filing something that will undermine, if not outright conflict, with what I’ve filed on your behalf. And CAAF shouldn’t entertain any ex parte communications (“pleadings” included) from a represented appellant without the express consent of his counsel.

    If I recall correctly, wasn’t there even a capital case where CAAF ordered affidavits from trial defense counsel based on a Grostefon issue, until appellate counsel were able to convice the appellant to withdraw it?

  11. Anonymous says:

    People, this was not a Grostefon issue, this was an issue defense appellate counsel raised. Sounds more like a problem that the defense appellate counsel didn’t take the time to read the record of trial. I’m sure if counsel had read the record, the issue wouldn’t have been raised at all. Very dangerous to rely solely on what your client tells you, especially when there is objective stuff that contradicts what your client tells you. I think this is a published opinion to get that point across–do some investigation into your client’s claims before you raise an issue!