Another stealth published opinion

While one wouldn't know it from looking at the CGCCA web site, WESTLAW indicates that the Coast Guard Court's Skidmore opinion will be published. United States v. Skidmore, __ M.J. ___, 2007 WL 957334, CGCMS 24314 (C.G. Ct. Crim. App. 29 March 2007).

First the Coast Guard Court wrestles with the issue of whether an accused who admits to illegally using cocaine on 4 to 5 occasions has providently entered a plea of guilty to divers uses of cocaine. CGCCA says yes, but spends much more time wrestling with the question than one might expect (and one judge, Judge Lodge, actually dissents on this point). The court tells us:

The military judge erred when he failed to fully inform Appellant of the elements of the charge and that the specification alleged cocaine use on divers occasions. He also erred when he informed Appellant that Appellant was only required to admit cocaine use on four or five occasions but did not need to establish a factual basis for those additional uses. Therefore, we may affirm Appellant’s guilt only if "it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty." United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992) (citing Article 45(a), UCMJ). Similarly, we may not affirm a finding based solely upon an accused's statement of a legal conclusion that he or she is guilty of an offense. United States v. Schrader, 60 M.J. 830, 831 (C.G.Ct.Crim.App. 2005); United States v. Halsey, 62 M.J. 681, 686 (C.G.Ct.Crim.App. 2006).

The Coast Guard Court then proceeds to reason:

It is clear from the record that Appellant knew he was charged with using cocaine on more than one occasion, and he freely admitted using cocaine on occasions other than in May 2004. He acknowledged that the substance he used on each occasion had the appearance of cocaine, that he was aware he was using cocaine, and that he experienced an effect consistent with cocaine use. These admissions, combined with his admitted use of cocaine in May 2004, provide a sufficient factual basis to establish that Appellant knowingly used cocaine on more than one occasion. Appellant also acknowledged his awareness that use of cocaine was illegal.

One of the all-time great titles for a military law review article is Major Terry L. Elling's Guilty Plea Inquiries: Do We Care Too Much?, 134 Mil. L. Rev. 195 (1991). Like Major Elling, I tend to think the answer is yes. If a petty officer wants to plead guilty and admits that he illegally used cocaine 4 to 5 times, why isn't that enough? The majority's machinations in Skidmore, while ultimately reaching the correct result, appear to be an example of the form over substance about which Major Elling warned us. And one judge actually dissents from this portion of the court's opinion, noting that he would reject the finding of guilty to "divers" uses.

Last week in Gitmo, I saw a commission defendant successfully enter an Alford plea and then waive all of his appellate rights pursuant to a pretrial agreement. Now I know that the Military Commissions Act of 2006 is designed to prevent court-martial practice from being contaminated by the far-less-fair military commission procedures. But I do wonder whether, in the area of pleas and permissible terms of bargains, commissions practice isn't a step ahead of court-martial practice. See also Major Steven E. Walburn, Should the Military Adopt an Alford-Type Guilty Plea, 44 A.F. L. Rev. 119 (1998).

In the far more significant portion of CGCCA's opinion, the court found plain error arising from a senior chief petty officer's testimony during sentencing that Petty Officer Skidmore's "rehabilitation within the Coast Guard" was "questionable at best." The Coast Guard Court found that, despite the absence of defense objection, this testimony violated United States v. Ohrt, 28 M.J. 301, 303 (C.M.A. 1989). The court refused to find harmless error or reassess the sentence. On the basis of the Ohrt error, plus the military judge's erroneous admission of aggravating evidence concerning the accused's assigned duties at the time of his offense (also not objected to at trial), the Coast Guard Court set aside the sentence in the case and remanded for a new sentencing hearing.