Court-Martial Trial Practice Blog
The AFCCA has issued its opinion in the relook at United States v. Rose. The court comes to the same conclusion that the defense counsel advice to the client about sex offender registration was wrong and IAC. The initial decision at AFCCA is here, and CAAF’s 28 October 2009 journal entry and order is here.
The statements of the appellant’s civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure the appellant that he would not have to register as a sex offender. In his testimony at the DuBay hearing, Mr. NC, the appellant’s civilian defense counsel, repeatedly used such phrases as “fairly innocuous” and “just foolery” to describe the sexual assault offenses. Mr. NC claimed lack of memory on many points but, in response to questions from the military judge, did recall concluding that sex offender registration was “not really a credible concern.” Consistent with this testimony, the appellant testified that when he directly asked Mr. NC if sex offender registration would be required Mr. NC told him: “I don’t see why it would be with the allegations that were brought against you. I don’t see why that would be a registerable offense.”
Bottom line it appears AFCCA believes the defense counsel considered the statements as “affirmative misrepresentations . . . concerning significant collateral consequences.” Slip op. at 5. Rose was tried in 2005.