The Judge Advocate General of the Air Force certified an issue to CAAF today:  “WHETHER AN ‘IMPRESSION’ LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER AS A SEX OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND LED TO INEFFECTIVE ASSISTANCE OF COUNSEL.”  United States v. Rose, __ M.J. __, No. 09-8020/AF (C.A.A.F. July 12, 2010).

This is the second time that a Judge Advocate General of the Air Force has certified the Rose case to CAAF.  When it first considered the case, the Air Force Court reversed the findings of guilty that would require the accused to register as a sex offender on IAC grounds arising from the civilian defense counsel’s faulty response to AB Rose’s questions about whether he’d have to register as a sex offender if he pleaded guilty to the indecent assault charges he faced.  United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009).  The Judge Advocate General of the Air Force certified the case to CAAF, which reversed due to the Air Force Court’s failure to compel an affidavit from AB Rose’s former military defense counsel addressing the IAC claim.  United States v. Rose, 68 M.J. 235 (C.A.A.F. 2009) (summary disposition).  After that affidavit was produced (which said the previous counsel didn’t remember anything), the Air Force Court, sitting en banc, reached the same outcome as in the original case, this time in a 3-2 unpublished decision available hereUnited States v. Rose, No. 36508 (f rev) (A.F. Ct. Crim. App. June 11, 2010) (en banc).

[Disclosure:  while I didn’t represent AB Rose in any of his previous appeals, I’m representing him for purposes of the certified issue.]

27 Responses to “New certified issue”

  1. Anonymous says:

    Isn’t this the kind of thing we’d miss if we had waive appeals provisions in GP deals?

    Just sayin’. ;)

  2. John O'Connor says:

    Yes. And we would be left with the shocking injustice that an accused who swore under oath that he committed an offense, where the United States kept its end of the bargain, could go up and down the military appellate system twice not based on whether he in fact committed the crime to which he confessed, but whether the disputed record as to what he was told by his own retained civilian counsel should give him a right to go back and now plead guilty to the offense his guilt of which he admitted under oath.

    No one’s arguing the guy didn’t do it, or that the government did anything in the pretrial and trial process that merited a new trial.

  3. Wow says:

    So, J’OC, at the end of the day you disagree not with military justice practice, but with Supreme Court precedent re: IAC?

  4. Anonymous says:

    No, I think he’s saying that guilty people don’t deserve fair trials.

  5. Anonymous says:

    So the right to effective assistance of counsel in making plea decisions being impeded wouldn’t be the “shocking injustice,” but, apparently, requiring effective assistance of counsel would be the “shocking injustice” because the government didn’t do anything wrong and the guy did it.

    Interesting. Why not just get rid of counsel at guilty pleas altogether if their effectiveness is something that is irrelevant?

  6. Anonymous says:

    Jo’c is saying that as long as a guilty person acknowledges his guilt and the govt’s happy with the results, it doesn’t matter if the accused fully understood the very real collateral consequences of his conviction or if s/he really got the benefit of their bargain. . .

  7. hah says:

    rabble rabble rabble! Get ready for another 3-2 decision.

  8. Christopher Mathews says:

    While apparently the only truly important thing about this case is whether it can be used to bludgeon J O’C …

    The procedural history of the case seems a little odd. The CCA published its original opinion, drew a successful challenge to that decision, and on remand narrowly affirmed its original holding in an en banc decision that it chose not to publish?

    I can think of lots of reasons why a case might be of sufficient importance to warrant a hearing before the full court, but few reasons why the decision in such an important case would not warrant publication.

  9. heh says:

    Stucky and ryan, I know, but who’ll be the 3rd?

  10. Southern Defense Counsel says:

    Alright, I’ll come to JO’C’s defense here. (I enjoy unpopular causes) It does not appear that the parties are claiming that the accused lied during providency, but rather that he was not informed of all of the possible attendant collateral consequences. It’s not the government’s fault that the accused hired a doofus. The person that hurt the accused was the lawyer. Make him pay through a malpractice claim. Not the government. Just a thought. (and yes, I know how unlikely such a claim is to succeed, but since JO’C likes to talk pie in the sky by advocating eliminating the no waiver requirement I figured I’d give it a go too…Ooops, sorry JO’C, I was supposed to be defending you… :)

  11. Anonymous says:

    well technically, deportation is no longer a collateral consequence per the Supremes.

  12. Look, pal says:

    Yep, this seems to be what J’OC believes. I wonder if any of J’OC’s defense clients have ever had such concerns?

  13. Look, pal says:

    C-Mat,

    Thank you for the insight. One question: did the en banc court offer new reasoning or did it mimic the original opinion? That might explain things…

  14. Anonymous says:

    oops, nevermind, this was registration, not deportation, my bad.

  15. Christopher Mathews says:

    Look, pal, the majority dismissed the “much litigated, much anticipated affidavit” from the appellant’s trial defense counsel, which CAAF ordered the CCA to obtain, saying it “adds nothing.” It certainly wouldn’t be the first time such an affidavit has proven to be a dry well.

    It’s just odd to see such an inconsequential piece of evidence submitted to the full court, when the CCA had previously denied a request for en banc review. The court explained that it was deciding the case en banc “based on changes in the composition of the original panel,” a statement which on its face explains very little. It’s not uncommon for the composition of the CCA to change between the release of its opinion and a remand from CAAF. But f rev cases are not routinely heard en banc.

    Since there were two judges in the dissent this time around, I suppose it’s possible that the “changes in the composition of the original panel” might have led to a decision contrary to the original published one; but that would be speculation on my part.

  16. Anonymous says:

    Of course, this time it will be 3-2 (or better) for the government.

  17. Civilian says:

    It’s debatable whether a waiver of appellate review would waive this type of IAC issue. In the civilian world, where we don’t appeal guilty pleas except for lack of jurisidition etc, this would be considered a collateral attack to withdraw the plea and not a direct appeal. The standing trial court would handle it. Now I know that’s not how it works in the military, with no standing trial court, but I think a similiar principle would probably apply to a waiver clause.

  18. Phil Cave says:

    One of the consequences of sex offender registration is that more clients plead not guilty. Some clients are willing to put the prosecution to its proof and take their chances of more confinement if there is also an outside possibility of not being convicted of a registration offense. And, we know the many times that the client is right to take the chance. There is a growing agreement that collateral consequences — such a quaint name — are in reality the most serious “punishments” from a conviction.

  19. Anonymous says:

    not sure I want to rely on “debatable” or “probably” in this situation. Right now, it’s “guaranteed.”

  20. Bridget says:

    What Phil said.

  21. Civilian says:

    The more I think about it, the more I wonder of the value of a waiver of appellate review. In practice, in my opinion, I think the only cases it would really affect would be guilty plea cases that are already submitted on the merits. I seriously doubt it would affect the appeal of basic issues like jurisidition and failure state an offense. And like I said above, it wouldn’t affect IAC and collateral attacks (otherwise the military would be far less fair than the civilian justice system). And I doubt any court would apply it to sentencing issues that arise after the waiver is agreed to (even in the civilian system, with limited direct appeals, there are ways to resolve sentencing issues either on appeal or with the original court).

    A waiver of appellate review would essentially have just the same practical effect as, well, an unconditional GUILTY PLEA. (I guess maybe there is some issue that a waiver would prevent an accused from appealing — Grosofon issues? providency challenges?) I think a less complicated way to get the same result as the waiver idea would be to end automatic appellate review. In my opinion, the only cases that would affect would be merits guilty-plea cases. But it would be much more straightforward than figuring out what has been waived and what hasn’t.

  22. Dew_Process says:

    Footnote 4, of the en banc decision, pretty much sums things up here.

  23. Look, pal says:

    J’OC, you should read this ^^^^^^^^^^^^^^^^

  24. Anonymous says:

    or we could just keep it the way it is now.

    Why are we searching for a solution to a problem created by a solution to a problem that doesn’t exist?

  25. C says:

    Well, doesn’t it seem kind like a waste of resources to review guilty plea merits cases? The accused pled guilty, and on appeal has no real complaints or even grostofon issues (where the accused can bitch about anything). Why should any time be spent on these cases.

    The waiver of appellate review idea would get these cases out of the system alot faster.

    But otherwise I don’t think it would have much effect. I think a guilty plea and waiver of all waivable motions would have the same practical effect as a waiver of appellate review.

    The problem with the waiver of appellate review idea is that it doesn’t take into account the civillian system of fixing things at trial level outside of direct appeals. Without a standing trial court it seems like the military needs appellate review as the means for resolving real issues that even guilty pleas sometimes have.

  26. Anonymous says:

    waste of resources? Not particularly. The appellate divisions are not swamped with work and back-logged cases, the courts are not overwhelmed with docketed appeals, and the rest of the various military judge advocates are not being oveburdened with work because the appellate divisions are bursting with judge advocates.

    A GP can be through the system in less than six months from Action to receipt by the CCA to a P1 to the service court and a pro forma to CAAF.

    So the resources/appellate processing argument doesn’t seem particularly persuasive.

    Your last point is but one of the reasons why waiving appeals is not equivalent to simply waiving all waivable motions, another being that many appealable issues do not require the appellant to raise them at trial.

  27. I agree says:

    Right. What if counsel failed to inform the client that his guilty plea could result in confinement? The analysis should not be any different when we are talking about sex offender registration.