Advice to the client – SOR – collateral effects

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.

The effect of Padilla v. Kentucky is that counsel have at least three choices when asked about sex offender registration:  say nothing, say “I don’t know, you need to ask a lawyer,” give correct or reasonably correct advice.  As I’ve posted before, the various states and federal rules on SOR are differing and complex.  However, reference to the DoD regulation may be sufficient.  See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006). 

Given the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state. However, we do expect trial defense counsel to be aware of the federal statute addressing mandatory reporting and registration for those who are convicted of offenses within the scope of this statute. 28 Also, we expect counsel to be aware of DoD Instr. 1325.7, which identifies offenses that trigger mandatory sex offender reporting. The operation of this statute and instruction may have an impact on an accused’s decisions both before and at trial, and on an accused’s legal obligations after conviction.

63 M.J. at 459.

It’s a pretty sure reality that a sexual assault allegation is going to be a registration offense – for how long and under what terms is going to vary.  I would suspect the brooding omnipresence of registration is what’s driving an increase in NG pleas, contested cases, and potentially a lot more acquittals.

Here is the DoD regulation, DODI 1325.7 — see Enclosure 27.

Here is an excellent article, MAJ Andrew D. Flor, Sex Offender Registration Laws and the Uniform Code of Military Justice: A Primer, 2009 ARMY LAW., 1.