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Monday, February 04, 2008
New published AFCCA opinion
The Air Force Court's web site has been down longer than a sub transiting the Artic Ocean, but I've been able to lay my hands on a hard copy of a published opinion that the Air Force Court released last week. United States v. Gladue, __ M.J. ___, No. ACM 36580 (A.F. Ct. Crim. App. Jan. 30, 2008). I won't be able to analyze it and comment on it until tomorrow night; I also welcome one of my blog colleagues to beat me to the punch. Here's a link.
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9 comments:
AFCCA had JO'C at "waived." AFCCA finds that a PTA's general waiver of all "waivable motions" is a sufficiently specific waiver to eliminate the need to conduct even plain error review for unreasonable multiplication of charges and multiplicity.
What is the Government's logic for essentially forcing a waiver when review is statutorily mandatory anyway? Not much time or effort is saved...ACCA had to do more intricate analysis about the novel issues of waiver than it would have with the underlying legal claims.
Also, the pious claims about contract rights often made by criminal courts almost makes me laugh. Contracts are overseen, regulated, interfered with, and subject to limits all the time. The false innuendo made by criminal courts is that contracts are sacred and must be left alone. But test this proposition by thinking about the most basic contract of all: marriage. The benefit of the bargain is reviewed and regulated by courts...despite the inherent "waiver" provisions of the original contract ("forever" "in good times and bad times").
No Man,
I didn't bother to even read this opinion until your teaser about it involving waiver. Yes, they had me at hello.
Anonymous, if your suggestion is that an accused ought to be able to waive mandatory review as part of a PTA so that the court need not go through a detailed waiver analysis with respect to particular issues and defenses, I wholeheartedly agree.
Perhaps we could ask our man in Vegas, JMTGst, to go down to the Strip to check the odds on a CAAF grant in this case. As the Air Force Court's opinion notes, no petition was filed in the previous Navy-Marine Corps Court decision adopting a similar position. The official CAAFlog Magic 8 Ball reads, "Grant likely."
JOC - no my point is the opposite. Waiver of issues as part of a PTA does not gain the gov't much when review is mandatory anyway. My point was that courts are wrong to oooh and aahh about the contracting rights of the parties. Contract rights are regulated by courts all the time. And here, the accused is not really a free agent. He or she is being virtually forced at every point.
Anonymous,
I was pretty sure that was what you actually meant. I just can't buy your idea that a court should say, heck, we have mandatory review, so if you got the CA to give you a deal by waiving various issues, ehh, heck with that you can raise them anyway.
As for the notion of being "foced," nobody forces the accused to take a deal (unless the DC is a crook). Ultimately, the accused bargains away whatever he does because he wants the deal, and he generally tells the MJ as much at trial.
With the multiplicity of charges in this case,may not have been forced but there sounds as though pressure was set in motion in a young man suffering from post tramatic stress, since his wife was threatened that they would lose their children- they both had to plead guilty. he had no choice but to plead to the charges - many were trumped up so they were sure to "get him one way or another"
Hos case should be reviewed very carefully. There should be a extensive review to make sure all issues are true to constitutional laws.
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