Tuesday, January 16, 2007

One small step for an accused, one giant leap backwards for accusedkind?

BZ to LT Mizer, whose mission is to win meaningful relief for his clients and who accomplished that mission in Tate. But I do wonder if the result is a net loss for the defense bar. I hasten to add that worrying about that issue is NOT LT Mizer's job, since his client Hospital Corpsman Recruit (?) Tate surely doesn't care about how United States v. Tate will affect future military justice accused and LT Mizer's duty was to protect Tate, not the remainder of accusedkind.

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?

--Dwight Sullivan


Jason Grover said...

First of all, BZ to Mizer for his brief and oral argument. Anybody remember the oral argument? The government counsel conceded that the proper remedy would be to strike the bad provisions and leave the rest of the PTA intact. Why? Maybe because it seemed like too much a hassle to retry Tate. But, with all due respect to Col I-love-Lane's-chances Sullivan, this was a bigger win for accusedkind than just for Tate. That's because there must be at least a dozen other murder convictions out there with Thomas-type deals. The Marine Corps seemed particularly fond of them. So the government's apparently case-specific minor concession may result in a dozen accuseds in murder cases getting parole and clemency long before they had agreed to.

The debate should not be so much whether the system is paternalistic; it is. But rather, have accused really lost anything by the strict enforcement of 705? The government will still plead these cases, but now when they seek to do so, they cannot bully an accused to waiving clemency and parole for 20, 50, or 60 years. Will the government just seek LWOP instead? Sometimes, but in cases where the government is willing to deal, it will deal.

And one last point about CAAF practice. I wrote the supp in Tate, and Mizer wrote the brief and argued it. This was an extremely simple supp. Something like "705 says you cannot do this." That was about it. LT Mizer got onto the case and started working on the brief and wondered where the research was. But sometimes, short and sweet get you further (and more grants) than long, complex arguments.

It is about time Thomas was overruled. Congrats again to Mizer- I am glad one of the turkeys I left you turned out nicely.

Guert Gansevoort said...

Fear not! Those who fear paternalism at the C.A.A.F., with its ability to save so many sailors from themselves and its ability to fulfill the promise of the Uniform Code, take heart! Having reviewed the Tate briefs on Westlaw, it would appear that the C.A.A.F. rejected a very important argument raised by Tate.

Tate argued that R.C.M. 705 prohibited the waiver of clemency and parole on two grounds: (1) The legislative history of Article 74 indicates a Congressional intent that clemency and parole not be waived and; (2) The Court has generally prohibited the waiver of collateral issues and only narrowly approved the waiver of administrative discharge boards in United States v. Gansemer, 38 M.J. 340, 342 (C.M.A. 1993).

The legislative history argument is the foundation upon which C.A.A.F. built its opinion. But the C.A.A.F. rejected the collateral consequences argument. The Court held that R.C.M. 705, and the UCMJ, does "not preclude an agreement to waive rights that may be waived in collateral or unrelated proceedings." So, just as the C.A.A.F. bars the sale of clemency and parole, it seemingly adopted the "let's make a deal" mentality advanced by CAAFlog for all other collateral matters. Will Judge Wiss's fear in Gansemer, that PTA's will address collateral matters such as willingness to be reassigned to a combat zone, soon be realized?

Marcus Fulton said...

No dark lining in this silver cloud. I agree with Grover that the government will not decline to deal any cases based on an inability to dicker over this term.

By the way, anyone wondering why the Navy has decided LT Mizer should be its lawyer at Code 14 rather than someone else's at 45 need only listen to his argument in this case on the CAAF website.