Tuesday, April 08, 2008

Two new grants from last week

I neglected to post two new grants that CAAF announced last week:

WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF "ATTEMPT," THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT.

United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008) (order granting review). Here is a link to NMCCA's opinion in the case. United States v. Rowe, No. NMCCA 200600184 (N-M. Ct. Crim. App. June 26, 2007).

WHETHER THE LOWER COURT ERRED IN NOT MANDATING A NEW STAFF JUDGE ADVOCATE RECOMMENDATION IN COMPLIANCE WITH RULE FOR COURTS-MARTIAL 1106(f) BE SERVED ON APPELLANT'S TRIAL DEFENSE COUNSEL AFTER IT REMANDED APPELLANT'S CASE TO A NEW CONVENING AUTHORITY FOR CLARIFICATION OF AN AMBIGUOUS ACTION.

United States v. Mendoza, __ M.J. ___, No. 08-0246/NA (C.A.A.F. Apr. 2, 2008) (order granting review). NMCCA's opinion is available at 65 M.J. 824 (N-M. Ct. Crim. App. 2007). We discussed NMCCA's Mendoza opinion here.
Posted by Dwight Sullivan at 12:01 AM

9 comments:

Anonymous said...

The fix to servicemembers asserting they are guilty at thr trial level and then asserting they were improvident at the appellate level would be changing RCM 810(d) and 1107(f)(5) such that the sentence at a rehearing would not be limited by the one adjudged and approved at the first hearing. This might put an end to needless litigation. And the system should make Accuseds waive appeals as part of a guilty plea. Or, better yet, make it unethical for an appellate defense counsel to take a position inconsistent with the Accused's position at trial, absent IAC.

Tue Apr 08, 04:03:00 PM EDT
Anonymous said...

Hmm....

So what do we do when the appellant really is improvident? Tough luck?

I've got a better suggestion: if we are going to stop reviewing the providency of pleas at the appellate level, why not get rid of providency all together? It is just a needless formality. We all know these guys are guilty, so why don't they just shut up and take their punishment without any more complaining?

But I suppose if we follow your view and make someone choose between exerting his due process appellate rights or potentially getting a higher sentence on rehearing, we won't need to worry about any of it; we can intimidate everyone into waiving their right to appeal...

And what's the deal with giving guilty people free defense counsel at trial and appeal? It causes needless litigation when those unethical wretches let their client plead not guilty at trial when they damn well know they are guilty...

And what's the deal with this whole "legal process," seems awfully inefficient...

Tue Apr 08, 06:41:00 PM EDT
Anonymous said...

Anonymous's point should be taken up with a letter to his/her Congressman. The "structure" of providency law in the military is well-settled, and has been for over 20 years. The only issues to be resolved in a particular case is whether there is a basis in law and fact for the plea.

The point about ethics is so dumb it refutes itself.

While I think this is an issue with merit, I hate the sophistry in the wording "...TO CROSS THE CRIMINALITY THRESHOLD OF "ATTEMPT..." This phrase is of the 'I'm-trying-to-impress-you' variety. Navy-Marine Corps needs to send its lawyers to the B. Garner course.

Tue Apr 08, 07:35:00 PM EDT
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Tue Apr 08, 08:08:00 PM EDT
Anonymous said...

Well, I say we should do guilty pleas as they do in federal court:
Judge: Mr. Defendant, did you commit the crime as alleged in the indictment?
Def: Yes
Judge: Is the government satisfied with the basis of the plea?
That's it. And, to get out from mandatory sentencing, there is much more pressure in federal court to plead guilty then in a court-martial. And if the accused is improvident then why did a military judge accept his plea?

Tue Apr 08, 08:10:00 PM EDT
John O'Connor said...

Samuel L. Jackson:

There's no constitutional due process right to plead guilty at trial and then turn around a year later (when the Government's witnesses probably have scattered and memories might fade) and claim that well, you really weren't guilty after all and you'd like a do-over. So if you're talking about a due process right in the constitutional sense, you're working from an incorrect premise.

The right to challenge providency on appeal is a due process right only to the extent that the statutes as written currently permit it. I'm personally not a big believer in the utility of this statutory right to invite error at trial and then complain on appeal that the judge did what you asked.

I do distance myself from the ethics discussion in anonymous's post.

And one last thing, I'm sick of these motherf***ing snakes on this motherf***inf plane.

Tue Apr 08, 08:13:00 PM EDT
Anonymous said...

1) Anon #1, you've been pwned.

2) Due process? Try UCI as the basis for improvidence jurisprudence.

Tue Apr 08, 08:48:00 PM EDT
Anonymous said...

How is there UCI in a guilty plea? Is the CA directing the MJ? If so that all powerful CA must also have his hooks in CCA. And when was the last time a CCA found UCI in a guilty plea?

Tue Apr 08, 09:10:00 PM EDT
Anonymous said...

Oh, oh – Anon #1, you're ready to blow over appellant's alleging improvident pleas?!

Well, I'm a mushroom cloud-laying motherf*cker, motherf*cker! Every time my fingers touch a ROT with insane novel specs and multiplicious charges, I'm Superfly T.N.T.! I'm the The Guns of the Navarone! In fact, what the f*ck am I doing in defense?! You're the motherf*cker who should be on defense detail! We're f*cking switching, I'm representing the government and you're picking up the itty bitty pieces of this client's improvident plea.

Tue Apr 08, 09:12:00 PM EDT

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