Additional briefing ordered in Larson -- UPDATED

On Tuesday, CAAF heard oral argument in United States v. Larson, No. 07-0263/AF. There were two granted issues in Larson. The first concerned whether Major Larson had a reasonable expectation of privacy in his government computer. The second concerned whether the civilian defense counsel was ineffective when, "in his opening statement, during findings, and again in closing argument, [he] conceded the Appellant's guilt to various charges and specifications."

Tuesday's oral argument didn't make it past the first issue. Apparently that left the Judges with some questions about the second. Today CAAF ordered supplemental briefing in Larson on the following two issues:

I. IN THE MILITARY JUSTICE SYSTEM, IS THE DECISION TO CONCEDE GUILT TO ONE OF MULTIPLE CHARGED OFFENSES DURING ARGUMENT A TACTICAL DECISION THAT COUNSEL MAY MAKE WITHOUT OBTAINING CONSENT OF THE ACCUSED? SEE FLORIDA v. NIXON, 543 U.S. 175 (2004); UNITED STATES v. CARE, 18 C.M.A. 535, 40 C.M.R. 247 (1969); UNITED STATES v. BERTELSON, 3 M.J. 314 (C.M.A. 1977).

II. ASSUMING, ARGUENDO, THAT COUNSEL MAY CONCEDE GUILT AS A TACTICAL MATTER AFTER CONSULTATION BUT WITHOUT CONSENT OF THE ACCUSED, DOES THE RECORD IN THE PRESENT CASE SUPPORT A CONCLUSION THAT COUNSEL CONSULTED WITH APPELLANT PRIOR TO MAKING SUCH A CONCESSION? IF NOT, WAS THE FAILURE TO DO SO PREJUDICIAL AS TO THE FINDINGS OR SENTENCE? SEE STRICKLAND v. WASHINGTON, 466 U.S. 669 (1984).

United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Nov. 29, 2007) (order).

Larson is shaping up to be a major decision on the division of authority between a lawyer and the client. CAAF seems to be particularly interested in issues concerning the attorney client relationship. Last week, CAAF remanded the Roach case to the Air Force Court for the limited purpose of allowing the defense to challenge AFCCA's listing of the Chief of the Appellate Defense Division as an "Appellate Counsel for the Appellant" even though she had never signed any submission to the Air Force Court in the case. United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Nov. 21, 2007) (summary disposition).

On 7 December, the Air Force Court revised its Roach opinion to delete the Chief of the Appellate Defense Division from the list of "Appellate Counsel for the Appellant."

[DISCLAIMER: I am one of Senior Airman Roach's appellate defense counsel.]