CAAF has already resolved one of the cases in which it heard oral argument this term.
Rose is an IAC/faulty advice as to collateral consequences case. Yesterday’s Daily Journal, available here, includes an order remanding the case for further factfinding. CAAF split 3-2. United States v. Rose, __ M.J. __, No. 09-5003/AF (C.A.A.F. Oct. 28, 2009).
The central issue in Rose is whether the civilian defense counsel provided ineffective assistance of counsel by creating the false impression that Airman Basic Rose wouldn’t have to register as a sex offender as a result of his pleas. AFCCA found IAC and set aside three of the specs. United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009). At some point, apparently after the case had been orally argued, appellate government counsel asked AFCCA to order that the original military defense counsel in the case provide an affidavit. AFCCA denied the motion.
The Judge Advocate General of the Air Force certified two issues to CAAF — the correctness of the IAC ruling and whether AFCCA erred by failing to order the affidavit’s production. In yesterday’s order, CAAF ruled for the government on the affidavit production issue. Judges Baker, Stucky, and Ryan were in the majority. Chief Judge Effron and Judge Erdmann dissented.
CAAF held that when an IAC claim is made, the attorney-client privilege is waived as to the entire defense team, and not just as to the particular counsel against whom the allegation is made. Even though the original military defense counsel was released before the alleged ineffective assistance of counsel occurred, CAAF found that information from his was potentially relevant.
CAAF reversed AFCCA’s decision and remanded the case for AFCCA to obtain an affidavit from the original military defense counsel and to conduct a new analysis of the IAC claim with the benefit of that affidavit.
Chief Judge Effron, joined by Judge Erdmann, argued in dissent that the government had adequate opportunity to develop the facts and that its post-decision motion seeking an affidavit from the original military defense counsel came too late.