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Foster was an unpublished opinion below.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