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Friday, January 06, 2006
U.S. V. ROSENTHAL - ON NEW ACTION BY THE CONVENING AUTHORITY
Imagine this: you're a trial defense counsel, with 10,000 cases on your desk, no time to stay catch up, when you find another file on your desk - a two-year-old guilty plea to a drug case in which the CCA ordered new action by the convening authority. As you flip through the file, you discover a note from the client (written before the original CA action) instructing TDC not to file clemency papers with the CA. Well, that makes your job easier, right?
Not really. You better check with the client. In U.S. v. Rosenthal, No. 05-0244, C.A.A.F. held that failure to contact the client was reversible error - in the two years since original CA action, the client might have done something to improve his chances for clemency. The standard for prejudice in clemency matters is pretty low - just a colorable showing that the result might have been different.
But if you're DEFENSE counsel, does this affect you? I suppose your ethical duty to communicate with your client , as well as your general duty to not slow down the justice system, requires you to take this step. But it's the government that loses here. I wonder if this ruling means SJA's will have to call up TDC and say "Are you going to file clemency matters? Have you checked with your client again???"
Not really. You better check with the client. In U.S. v. Rosenthal, No. 05-0244, C.A.A.F. held that failure to contact the client was reversible error - in the two years since original CA action, the client might have done something to improve his chances for clemency. The standard for prejudice in clemency matters is pretty low - just a colorable showing that the result might have been different.
But if you're DEFENSE counsel, does this affect you? I suppose your ethical duty to communicate with your client , as well as your general duty to not slow down the justice system, requires you to take this step. But it's the government that loses here. I wonder if this ruling means SJA's will have to call up TDC and say "Are you going to file clemency matters? Have you checked with your client again???"
