Tuesday, October 24, 2006

Cutting a deal to deal accused out of clemency & parole

CAAF will be hearing argument in a very important case tomorrow. Here's the issue presented in United States v. Tate:

WHETHER THE PRETRIAL AGREEMENT VIOLATED RULE FOR COURTS-MARTIAL 705(c) BY DENYING APPELLANT THE POST-TRIAL RIGHT TO SEEK CLEMENCY AND PAROLE

The opinion below was unreported, but basically followed the Navy-Marine Corps Court's decision in United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004). [NMCCA's unreported decision in Tate is available here: http://www.jag.navy.mil/NMCCA/200201202.UNPUB.doc] Thomas was an interesting case. He had originally been sentenced to death but CAAF set aside his sentence due to an instructional error. 46 M.J. 311 (C.A.A.F. 1997). Because his offense preceded 18 November 1997, Thomas could not be sentenced to life without eligibility for parole (LWOP). To escape a second capital referral, he cut a deal for de facto LWOP by agreeing not to seek or accept clemency or parole. (I guess if his jailers at the USDB were to fling his cell door open and tell him to go home, he would remain seated on his bunk, making hash marks every morning as he woke up and glanced at the open door.) My initial inclination is that the system should not paternalistically take a bargaining chip away from the accused, but I'm not confident in that conclusion. I look forward to listening to the audio of LT Mizer's argument on behalf of Tate.

The second case being argued on Wednesday (and the last argument of the month) is United States v. Foster. Here's the issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT RULED THAT THE MILITARY JUDGE DID NOT BECOME A PARTISAN ADVOCATE FOR THE GOVERNMENT, AND THAT THE MILITARY JUDGE'S TREATMENT OF THE DEFENSE EXPERT DID NOT DENY APPELLANTÂ’S RIGHT TO PRESENT A DEFENSE.

Here's a serious question for those currently practicing military appellate law: did the defense counsel write this issue or did CAAF reformulate a more persuasive issue into this form? If the former, then every appellate defense counsel should buy one of Garner's books that includes a discussion of issue framing and study and implement his method.

Foster was an unpublished opinion below. Worse, if you go to NMCCA's web site and click on the link for the Foster opinion, you will get the court's opinion in Untied States v. Brumfield instead. If you click on the Brumfield link, you will also get the Brumfield opinion. For those with LEXIS access, the actual Foster opinion is available there (as is Brumfield). Finally, there is still no opinion on the NMCCA web site released since 11 September. That seems like quite a lull without producing anything of note.

--Dwight Sullivan

5 comments:

Jason Grover said...

In regards to Tate:

It might paternalistic to take away this bargaining chip, but the system is incredibly paternalistic as it is. But look at the wording of the Tate Grant:

WHETHER THE PRETRIAL AGREEMENT VIOLATED RULE FOR COURTS-MARTIAL 705(c) BY DENYING APPELLANT THE POST-TRIAL RIGHT TO SEEK CLEMENCY AND PAROLE.

As a disclaimer, I wrote the Tate Supp. Here was my QP:

RULE FOR COURTS-MARTIAL 705(C) PROHIBITS TERMS OR CONDITIONS THAT DEPRIVE AN APPELLANT THE COMPLETE AND EFFECTIVE EXERCISE OF POST-TRIAL AND APPELLATE RIGHTS. APPELLANT’S PRETRIAL AGREEMENT REQUIRED APPELLANT TO WAIVE HIS RIGHT TO BE CONSIDERED FOR CLEMENCY AND PAROLE UNTIL 2019. DID THE PRETRIAL AGREEMENT VIOLATE RULE OF COURTS-MARTIAL 705(C) BY DENYING APPELLANT THE POST-TRIAL RIGHT TO SEEK CLEMENCY AND PAROLE?

Somebody, CLS I assume, ditched my deep issue but retained the essential point. The plain language of RCM 705(c) says you cannot waive appellate and post-trial rights. The only question is whether you view the right to seek clemency and parole a "post-trial right." If it is, you can't waive it. There is no "but-the-accused-wanted-to-avoid-a-capital-case" exception to RCM 705. This seems to me to be an easy case.

But that does mean it won't have huge implications. I don't have the numbers, but it is my understanding that there are at least a dozen similar PTAs out there, many from the Marine Corps, relying on United States v. Thomas, that have the same or very similar language. A defense win for Tate could knock out the PTAs in several high-profile, murder cases. I too look forward to listening to the argument.

Dwight Sullivan said...

The Super Muppet gives us an important data point. CAAF's clerk is rewriting -- or at least truncating -- the issues presented in the supp. Since the purpose of the supp is to get a grant, the deep issue has already done its work by the time the issue granted shows up in the Daily Journal. So the practice seems largely unobjectionable. Anyone disagree?

Marcus Fulton said...

You do lose control over the framing of the issue when you do that. CAAF seems to leave most issues alone as long as they are in the "Whether" format--even ones that are rather lopsided in presentation. I prefer the deep issue, but wonder if it's worth letting the court rewrite it for you.

Jason Grover said...

Listening to Tate, I was shocked at the direction of the argument. I had expected much discussion over the fact that by agreeing to this provision, Tate potentially avoided LWOP. And maybe even a capital referral. Instead, the big question seemed to be whether CAAF has to strike the entire PTA or just that provision. The most surprising part was the appellate government counsel's concession that the Court should just strike the provision and move on, not throw out the entire PTA.

Nice job LT Mizer, we all enjoyed the General Eisenhower quotes and the rebuttal citing a 1915 statute.

Phil Cave said...

Actually, I have a practical objection to allowing negotiations of such agreements. How many trial defense counsel actually understand how clemency and parole works? We know that the CA rarely grants clemency, and that's a no brainer to give up in a deal. However, I am more uncertain of voiding R.C.M. 705(c), in-toto. I have had some very strange "opinions" from trial defense counsel out there on the appellate process and also the clemency and parole process. On the other hand, in a case where you know the accused is unlikely to get relief on appeal, what's the harm in giving that appeal up. This would be especially true because many trial counsel and SJA's are equally uncertain of the reality of the post-trial process. There are actually TC's and SJA's out there who think meritorious issues get relief.
As to the specific case, the PTA did not violate 705(c). He wasn't required to give up a "complete and effective" clemency process, merely a delay. As to the Article 66, that would be a different question of course. Here my cynacism would tell me that he may have given up a "complete" review, but not an "effective" one. If he didn't have any meritorious issues, what did he give up? If he had issues, but we know that CCA would not grant relief, and CAAF would support CCA, what did the person give up --- a paper drill?
Another point, what is the complete and effective review in a guilty plea case -- the only cases that this issue will come up in? A guilty plea waives all issues pretty much.
So, My Liege, a sufficiently ambiguous comment?
FULL DISCLOSURE, I have happily and successfully negotiated two such deals, one with another service; based on Thomas.