ACCA can't handle the truth!

It's been a slow month for the CCAs. Neither the Air Force Court nor the Navy-Marine Corps Court has updated its web cite's opinion page for a month. Navy Knowledge Online includes what it says is a published NMCCA opinion, United States v. Dearmond, No. NMCCA 200501343 (N-M. Ct. Crim. App. May 31, 2007), but upon opening it, I see that the opinion says, "AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT." Id., slip op. at 1. (I also checked to see if either of the other NMCCA opinions dated 31 May was published -- nope.)

But to break the monotony, ACCA issued an extremely troubling opinion today. Here is the essence of United States v. Stokes, __ M.J. ___, No. ARMY 20041348 (A. Ct. Crim. App. June 11, 2007). Stokes pled guilty to larceny of military property under the mistaken belief that the military would have to cover the $1,600 he racked up on his government credit card. On appeal, his crackerjack defense appellate counsel realized that was false and challenged the providence of the plea. GAD then CONCEDED ERROR. I'm not sure how often that happens, but I'm guessing just slightly more frequently than a filly wins the Belmont Stakes. Too bad, ACCA rules. Sure it was factually incorrect when Sergeant Stokes said the government would be out the money, but he said it, and that's all we needed to hear. (Not an exact quote.) Turning a blind eye to the truth "promotes judicial economy and brings finality to the appellate process. It also ensures that, except for those rare circumstances when truly new evidence comes to light, an appellant is not permitted to use the benefit of hindsight to undermine tactical decisions reasonably made at trial." Stokes, slip op. at 9. Well, it also promotes disrespect for the law, treating a court-martial finding like the result of a parlor game rather than a solemn pronouncement that should be, if possible, factually accurate.

It's a good thing for John Mark Karr that he wasn't in the Army. If he has shown up at a court-martial and admitted to killing JonBenet Ramsey, ACCA would have averted its gaze from any subsequent evidence proving that he wasn't guilty. Oh, and sorry, no petition for new trial based on new evidence -- you can't file one of those if you pled guilty. But don't worry, PVT Karr, ACCA might still let you use collateral evidence to raise an IAC claim. But what if the counsel hadn't been ineffective for believing Karr's story and had cut what would have been an advantageous deal for someone who actually had murdered a 6-year-old? Please enjoy your stay at the USDB, PVT Karr, you'll be here a while.

I have previously noted my very prosecution-friendly view that the Fourth Amendment exclusionary rule should be abandoned, in large part because it interferes with a trial's truth-seeking function. And here we have a case where the result was clearly factually incorrect, ACCA acknowledges that it was factually incorrect, and it says it doesn't care.

I'll bet CAAF cares. This will be an interesting petition process, since Army GAD has already formally sided with DAD on the issue. Will GAD support the petition for grant of review? Will DAD file a consent motion to summarily reverse?

Let's have another contest: write the issue presented for the Stokes supplement. A copy of Judge Baker's new book to the winner (or a book of equal value if the winner already has Judge Baker's book or if this winner IS Judge Baker). Contest ends at 1700 Eastern Daylight Time, Saturday, 16 June. I unilaterally pick the winner applying arbitrary and capricious criteria of my choosing. Bonne chance.