But by erecting restrictions on what the defense can bargain with, isn't the likely long term effect worse deals for the defense, since, in the words of Justice Thomas, "[a] defendant can 'maximize' what he has to 'sell' only if he is permitted to offer what the prosecutor is most interested in buying."?
Justice Thomas offered this sage observation in United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995). Justice Thomas reasoned for a majority of the Court:
[A]s a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips. . . . [I]f the prosecutor is interested in "buying" the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains.
Id. at 208.
Even CAAF, which has historically been quite paternalistic, has noted that "restrictions on pretrial agreements can work to the detriment of an accused," and then cited Justice Thomas's language from Mezzanatto about the defense being able to sell only what the prosecution is buying. United States v. Rivera, 46 M.J. 52, 54 (C.A.A.F. 1997). CAAF also quoted the following portion of Mezzanatto:
The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether. . . . Instead, the appropriate response to respondent’s predictions of abuse is to permit case-by-case inquiries into whether waiver agreements are the product of fraud or coercion. We hold that absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive [the evidentiary objection to incriminating statements] is valid and enforceable.
115 S. Ct. at 806.
Similarly, in United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995), CAAF relied on Mezzanatto in the course of holding that while the government could not require the accused to waive an unlawful command influence motion, a pretrial agreement's provision waiving such a motion would be enforced where "the suggestion for the pretrial agreement and waiver . . . originated with appellant and his counsel." Id. at 19. If the accused can waive such a motion by failing to raise it at the appropriate time, CAAF reasoned, "then surely an accused, following a timely objection, should be permitted to initiate an affirmative and knowing waiver of an allegation of unlawful command influence in the preferral of charges in order to secure the benefits of a favorable pretrial agreement. To hold otherwise would deprive appellant of the benefit of his bargain." Id.
Of course, in Tate CAAF was merely construing R.C.M. 705(c); it wasn't concocting policy of its own making. Should R.C.M. 705(c) be relaxed to promote a freer marketplace for pretrial agreements?