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anything), the Air Force Court, sitting en banc, reached the same outcome as in the original case, this time in a 3-2 unpublished decision available here. United 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.]