Monday, March 24, 2008

Interesting CGCCA writ

The Coast Guard Court on Friday issued an interesting writ of habeas corpus in Ader v. Brooks, Misc. Dkt. No. 003-08 (C.G. Ct. Crim. App. Mar. 21, 2008).

Petty Officer Ader has been confined since 29 August 2007 as a result of a court-martial sentence to confinement for nine months, a BCD, and reduction to E-1. As part of a PTA, the CA agreed to waive automatic forfeitures of $800 per months for 18 months and have that $800 paid to Ader's wife.

The record was docketed with the Coast Guard Court on 4 February. On 10 March, the defense filed a petition for writ of habeas corpus seeking Ader's immediate release because, in violation of the PTA's terms, his wife had received no waived forfeitures.

On Friday, the government rolled over and "concede[d] that Respondents have failed to comply with a material term of the pretrial agreement, which resulted in Petitioner not receiving what he bargained for. Therefore, Respondents concede that Petitioner's pleas were involuntary and concur that he should be immediately released from confinement."

THAT SAME DAY, the Coast Guard Court ordered Petty Officer Ader's immediate release from confinement. The court went ahead and invalidated his findings and sentence for good measure, writing:

Based on Petitioner's unrebutted affidavit and noting Respondents' concession, we find that he did not receive the benefit of his bargain as to a material term of his pretrial agreement. Accordingly, his pleas are improvident. United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003). The findings of guilty and the sentence are set aside, and the case is returned to the Judge Advocate General for referral to an appropriate convening authority, who may order a rehearing.
Petty Officer Ader must not have had much time left on his nine-month sentence, but the case calls to mind that line from Noyd v. Bond where Justice Harlan wrote for the Court: "While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires." Noyd v. Bond, 395 U.S. 683, 699 (1969).

A huge BZ to the Coast Guard Court for acting as quickly as possible to safeguard a servicemember's rights.


Anonymous said...

This decision is an example of yet another reason why CAs should not agree to defer or waive forfeitures as part of a PTA. If appropriate, as an act of clemency, the CA can certainly take care of the family after the trial.

Trial counsel beware - advise CAs to "just say no" to including forfeiture provisions as part of a PTA.

Anonymous said...

Dang, the first commenter took the words out of my mouth. It boggles the mind why CAs feel compelled to subsidize the families of criminals.

If the accused won't plead without the forfeitures, just try the damn case. If it's a weak case, admin sep the accused. Good grief.