Wednesday, March 05, 2008

Old business: United States v. Grisham

I'm playing catch-up this week, so here's a belated summary of United States v. Grisham, __ M.J. ___, No. ARMY 20050479 (A. Ct. Crim. App. Feb. 29, 2008).

As the result of a smorgasbord of drug, check, and other offenses, Grisham faced a general court-martial. He had a PTA that provided, in pertinent part, "The government agrees not to prefer any additional charges or specifications against the accused for any potential misconduct of which the government is aware at the time this offer is signed."

Grisham signed the proposed PTA on 1 December 2004. The CA signed the deal on 8 December 2004. This made it inevitable that the government would discover evidence of further misconduct by Grisham during the week between the two signatures -- which it did, which Grisham popped positive again on 6 December 2004.

Grisham went to trial for the original offenses on 12 January 2005, where he was found guilty in accordance with his pleas. About a month later, the government preferred charges arising from the 6 December drug pop. Grisham then cut a deal on the new offenses and was found guilty at a second court-martial in accordance with his pleas. The PTA from his first court-martial wasn't raised by the defense during the second court-martial.

On appeal to ACCA, Grisham's appellate defense counsel argued that the first court-martial's PTA precluded the second court-martial. ACCA disagreed.

ACCA first suggested that it thought the issue was waived, but nevertheless proceeded to its merits.

ACCA emphasized that the PTA referred to the date on which the OFFER was signed, which occurred when Appellant signed it on 1 December. The CA's 8 December signature was an acceptance, not an offer. ACCA also emphasized that the defense, not the government, had drafted the term.

To the extent that the PTA was ambiguous, ACCA found it appropriate to look outside the PTA's terms at the parties' understanding. Unfortunately for Grisham, he stated on the record at both his first and second courts-martial that the deal applied to misconduct that the government knew of as of 1 December 2004.

1 comment:

John O'Connor said...

Smells like waiver to me, though I think the government probably wins on the merits anyway. But I have two other thoughts about this case:

1. Why would the CA ever enter into that deal? The government is a big place, and the CA appears to be binding the "gfovernment" not to proceed against the accused for any crime the "government" might know about as of the time of the offer. That is a provision easily (and maybe best) construed as a broad gfrant of immunity for anything the "government" in all its forms might know that the accused did. What if the CA found out that some CID investigator had come to know on November 30 that the accused was probably involved in an unrelated murder. The CA essentially bought a pretty big pig in a poke.

2. Why bother with the second court-martial? You've already got the boomer and 40 months confinement. I guess the answer is that you have to take a pretty hard line on drugs in the brig, but we would pretty much try to stop expending legal resouces on someone who had a boomer and a nice and long period to think about things in the brig.