Thursday, November 15, 2007

Granted providence inquiry issue

CAAF didn't post a daily journal update today, so there's still no official word on the naval case with the grant from yesterday. But a well-placed naval source suggests that the case was United States v. Inabinette, No. 07—0787/MC. Can anyone confirm or deny that scuttlebutt? Here's the issue presented in Inabinette: "WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT REVIEWED FOR AN ABUSE OF DISCRETION, RATHER THAN DE NOVO, THE MILITARY JUDGE’S LEGAL CONCLUSION THAT APPELLANT’S PLEAS WERE PROVIDENT."

The opinion below, authored by the learned Judge White, is another one of those unpublished opinions that seems more worthy of publication than a lot of what shows up in the Military Justice Reporter. United States v. Inabinette, No. NMCCA 200602228 (N-M. Ct. Crim. App. June 12, 2007). Here's a link. The opinion concluded that "[b]ecause the military judge exercises discretion, the decision to accept a guilty plea is entitled to deference on appellate review, and it is appropriate to review that decision for abuse of discretion. The Prater substantial basis test establishes the degree of deference. Prater, 32 M.J. at 436; see Shaw, 2007 CAAF LEXIS 537, at 4; Logan, 47 C.M.R. at 3." Id., slip op. at 3-4.


Anonymous said...

Confirmed. That issue was granted in Inabinette on November 14th.

John O'Connor said...

Personally, I think the standard practice of having the military appellate courts review the providence inaquiry in all guilty plea cases where the punishment exceeds the Article 66(c) threshold is, to use a technical legal term, "stupid."

Granted, that's what the UCMJ and MCM require, but I think a more sensible system would be one that kicks out most guilty plea cases along the way, a result that probably could best be achieved by by allowng PTAs to include an appellate review waiver. That would enhance the laudable goal of finality in guiltry plea/PTA cases and allow appellate review resources to be better focused on cases that were contested at trial.

Anonymous said...

I don't like the idea of allowing the accused to waive appellate review, mainly because I think it removes an important incentive for counsel, military judges, and convening authorities to do their respective jobs.

I might feel differently if error at the convening authority level were infrequent. Sadly, that is not the case. Allowing an accused to waive appellate review would be a boon to convening authorities while offering little benefit to appellants. Convening authorities would receive less scrutiny of their post-trial handling of the case, a less demanding post-trial timetable, and a far less exacting standard of review under Article 64, UCMJ. If I were an SJA, I would advise my commander to demand this provision in every PTA he or she signed.

I suspect that waivers of appellate review would quickly become as standard in PTAs as agreements to trial by military judge alone or requests for voluntary appellate leave. While this would significantly reduce the appellate caseload, it would also destroy one of the fundamental safeguards built into the military justice system. Article 66(c), UCMJ, may be inconvenient and time consuming, but it is a necessary check on the tremendous power of the convening authority and the potentially coercive influence of rank. We are fond of telling civilians that military accused have more protections than civilian accused. This proposal would effectively remove one of the most important. Appellate review by an independent court of criminal appeals should be the rule, not the exception.

John O'Connor said...

Anonymous #2:

Who's "fond of telling civilians that military accused have more protections than civilian accused"? Not me, mainly because it's not really true. Try telling that to an accused who wants his trial before a jury of his peers, or is convicted on a 4-2 vote.

What I would say is that the servicemember's protections are "different" than that of civilians, in some cases more and in others less.

As for your argumwent that appellate review waivers would become more or less a required element of a PTA, I can only say that I would hope so. I think post-trial handling of cases would be simplified if an accused could bargain away his appellate rights, removing some of the paperwork exercise that creates appellate issues.

I know most on this blog disagree with me on this, but that's what I believe.