Monday, May 19, 2008

The April issue of the Army Lawyer is online

Yipping at the heels of the March issue, the April edition of the Army Lawyer is now online here. But the April issue doesn't have nearly as much of interest to military justice practitioners. The issue does include a piece on providence inquiries, but it's really a guide for rookie trial defense counsel. See Colonel John Siemietkowski, USAR, Preparing Your Client for Providency, Army Law., Apr. 2008, at 44. I don't see anything in the issue that is likely to prove helpful to military justice appellate advocates.


Anonymous said...

JO'C, I just posted this response somewhere else, but its better continued here, on this providency post.

Your defense of waiving appellate review is, well, defense-worthy.

However, I must quibble with your reason #(3) getting rid of the kabuki dance where clever trial defense counsel try to get their clients to say enough to get the MJ to take the plea but leaving open an argument for the opposite result on appeal.

While this may seem, retrospectively and in theory, like a strategic-gambit, it really isn't. If you see a kabuki dance, it is only because you are hearing music in your own head.

First, in reality, if providency falls apart, then the defense lawyer's reputation suffers. He or she is sometimes considered almost incompetent. (Although this is unfair, because many clients are simply just not that intelligent, coherent, or articulate - I think psychologists use the phrase "linear" in their thinking). So, defense counsel are not trying to get their clients to say just enough so that x,y,z...they are just trying to get their clients to say enough, period.

Second, one of the tragedies of military defense is how little the trial shops and appellate shops actually work together. Generally, they do not train together, hold conference calls or brainstorm together, or communicate that frequently. I think a call from appellate defense is more threatening for trial practioners. So there is no coordinated rope-a-dope on these dives.

Third, you let the military judges off the hook here. The problem is that too many judges gundeck these dives. Its bad puppet-theater. Just a few more questions, maybe 5 or 10 more minutes, and sometimes a pre-emptive strike on some of the more obvious and recurring affirmative defenses! I love the appellate rule of law that judges are presumed to know and apply the law, but then somewhat of the opposite rule when it comes to whether they should foresee relatively obvious implied affirmative defenses.

Finally, the most distrubing aspect of dives is that all parties suspect...and sometimes know...that a certain percentage of these guilty pleas are bogus, contrived, robotic responses to get the benefit of the bargain. The institutional incentives overwhelm the truth-seeking goals of trials. Appellate review is necessary to avoid the abuses if this system becomes unchecked.

This in no way attacks your other supports for waiver of appellate review. I just don't think your reason #3 is strong.

Anonymous said...

I have a hard time imagining how article on preparing a client for providency isn't just as likely to prove helpful to military justice appellate advocates -- even if it's just to reduce their caseloads.

Maybe anonymous #1 is on to something in how little the trial shops and appellate shops actually work together.

John O'Connor said...

Anon #1,

I agree with everything in your thoughtful post except for two points.

1. I think it's usually true that DCs are not engaged in the kabuki dance of trying to set up appellate issues. But I saw it happen in a few of my cases. In particular, I can think of one where the accused was giving a clearlyy implausibloe story about [possibly having a vagune inten tion to return explosives he stole from the military. His defense counsel was a savvy defense counsel who presumably would continue on the case on appeal. It was clear to me that the accused was trying to say enough to get the deal on a larceny plea but leave room to attack the plea on appeal (as I recall, no punitive discharge would have been available had the charge been knocked back to misappropriation). There was NO chance the accused could have succeeded in a trial on reducing the charges to misappropriation, though if the record were infected he might have been able to plead out on a remand when witynesses would have been scattered, etc.

After the trial, the MJ actually thanked me for continuing to advocate that the accused had not said enough to plead to larceny, even though the MJ initially was irritated with me because he wanted to take the plea.

The other quibble is that I'm not sure I agree that a significant percentage of these cases involve accuseds pleading to things they didn't do in order to get a deal. Maybe I'm dead wrong about that, but my impression was that this was not the case. I will say that my impression as that accuseds often had a shocking lack of regard for telling the truth in the providence inquiry, but that usually involved minimizing guilt and not pleading to things they might not have done in order to get a deal.

I agree with ecverything else you say, particularly the lack of coordination between DC and appellate DC.

Anonymous said...

As far as I can tell, DC no londer work with their clients on providency prior to the dive. Probably because of 1) laziness and 2) the Government will usually dismiss a blown specification. (also laziness.)

Anonymous said...

I share the last anonymous' view as to the defense's failure to prepare the accused for providency, but I disagree as to the causes. I've had some spirited debates with defense counsel after blown pleas, and in the course of these debates they've revealed certain views they hold of the attorney-client relationship that I believe contribute to their clients' performance during providency. Specifically, they view the traditional role of military defense counsel during providency as being, at best, overly "directive". At worst, they view that role as being unethical.

They believe their role is properly limited to assessing the case, negotiating the deal, advising the client of the consequences of the pleas and his duties under the agreement, and then leaving the client to his own devices to get through providency. At that point, it's all up to him and the military judge.

After all (in their view), why do you need the assistance of counsel if all you're doing is simply answering the questions of a military judge fully and truthfully?

This view is certainly contrary to the way I was trained as military defense counsel, but it seems to be fairly widely held by a younger generation as a "principled" model of attorney-client relationships, drawn primarily from their law school experiences. In this model it seems counsel should simply facilitate the delivery of legal services to consumers who may choose to partake of those services; counsel should not presume to act as some sort of privileged elite who knows better than his customers where those customers' best interests truly lie.

Anonymous said...

I NEVER see the senior defense counsel sitting in the courtroom when a newly reported counsel is in court. I frequently see two defense counsel at counsel table, which I assume is for training purposes, but the senior person is senior only by a few months into his or her first tour. And I am also convinced that neither defense counsel has reviewed the charge sheet. It is lamentable.

Anonymous said...

We should be cautious of generalizations about providency. There is probably a bell-curve, where, say 70% of the dives are adequately prepared for and everything goes ok. But I think outside observers need to be cautious about assuming (or deducing) that unscripted or surprise comments result for a lack of prep. These clients usually have psychological, social and intelligence issues going on. I stand by my earlier comment that this is usually the cause of blown providency.

There is another, more subtle, cause of blown providency. That is when defense counsel attempt to prepare their client for providency in an element-by-element micro-management style, but fail to "psychologically" prepare their client for providency. Many clients don't get the "big picture" about what providency is all about. For example, they are sometimes taken aback that the Military Judge is so pleasant and courteous to them ("Is he wearing all of the uniform items he is entitled to wear?" "You may remain seated" etc.) Then the MJ advises them of all kinds of RIGHTS! "Wow! I think the Judge likes me!" He thinks. "If I can just explain to the judge what really happened, maybe he will understand and let me go." I kid you not - if you have not psychologically prepared your client for this typical internal reaction, then all the script practice and element-by-element, fact-by-fact rehearsal, will go to waste. The client needs to know that its all business and what the overarching purpose of providency is.

One of the anons had a very perceptive insight about the philosophical debate among defense counsel about the proper role of the defense counsel. This is tricky. We cannot generalize the answer. I sometimes cringe when I think of what some "experienced" defense counsel REALLY mean when they use the term "client control." Its a buzzword that, to me, is rather perjorative, and skirts on the edge of an ethical conflict.

I would rather NOT have a senior person sitting beside me. A senior person is probably all about the numbers and pushing yet another case through.

Anonymous said...

Actually, I thought the checklist at the end of the article was a pretty good list for spotting potential appellate issues.

Do we not all remember the clients who in the midst of the providency inquiry started blurting out things we had no idea could be in their brains?

I read this realizing that sitting and listening to the client during the providency inquiry may be one of Dante's undisclosed circles. It is where bad defense counsel go when they fail to prep the client.

A lot of this has to do with the judge.

It can all fall apart no matter how well the defense counsel prepares the client. Inevitably, the clients want to explain themselves, especially if the client's family comes in.

How many times has a client told you, "Don't tell my Mom [wife, Dad, sister, etc] that I was [using dope, looking at child porn, stealing from Uncle Sam, etc.].

The good old Army phrase of "train like you fight" is so true. I always expect a problem in the providency, because the clients are in a spot they would prefer to avoid.

Anonymous said...

CAAFlog and JO'C, in your list of possible military justice reforms, what would you think about permitting Alford pleas in the military? (i.e., "I do not admit guilt, but I admit that there exists sufficient evidence to convict me beyond a reasonable doubt.")

If this was also added as a second prong to a guilty plea (i.e., "in addition to pleading guilty, I ALSO admit that ther exists sufficient evidence to convict me..."), this would eliminate 99% of all guilty plea appeals. Yet there would still be an escape hatch to cover gross injustices and contrived guilty pleas, such as the potential train-wreck where John Mark Karr almost pleaded guilty to killing JonBennet Ramsey. It frightens me to think that such a guilty plea COULD survive under military law.

Anonymous said...

Having been a DC/SDC for numerous clients who plead guilty -- providency can get tricky regardless of how much prep time you put in with the client. While its true that there are some "lazy" DC's who don't properly prep clients for the providency inquiry - there are equally as many lazy MJ's who merely go through the motions during providency and state facts and ask the accused if they agree or disagree (e.g. "And you agree that this was PGOG?). Is it our jobs as DC's to correct this judicial laziness? Absolutely not.

Additionally, the most difficult part with a client who may be guilty of something, is that while he may be guilty if he doesn't fit the TC's "theory" of guilt as reflected on the charge sheet, you become stuck trying to fit the "truth" into the specification and this often creates tremendous issues during providency. This is often a reflection of a lazy/inexperienced TC/COJ who throws literally every possible charge into a charge sheet and expects the accused to readily admit guilt to all of it -- consistent with the TC's limited understanding of what may have actually happened. It is the exception to the rule, in my experience, where I could point out some problems with the charges and have the TC understand the issues that may come up during providency.

Some inexperienced TCs/COJs become married to their version of the facts -- as reflected in a poorly drafted charge sheet - and DCs, regardless of the (in)experience -- are expected to plead to the sheet or there is no deal.

Having no PTA is fine but the system benefits when both sides can agree to what the accused can actually plead guilty to and have the charges/specs reflect an "honest" charging decision by the TC/COJ.

Most clients who want to plead guilty truly want to admit guilt. But when you have sloppy charge sheets and inelastic Crim Law shops the result is often a a providency inquiry that isn't as smooth as it should be.

John O'Connor said...

Anon 12:15:

I guess my initial thought is to be against Alford pleas in the military. To me, the most salutary reform would be to allow appellate review waivers as part of a PTA. I think the existence of a providence inquiry helps reduce some of the potential vices that some think might happen if appellate review were waived as a matter of course. I think it would be useful to maintain the MJ as a gatekeeper.

Granted, some will say that MJs will just rubber stamp PTAs if they know there is no appellate review available. I tend to trust MJs more than that. Also, CAAFlog's idea is to make the appellate waiver part of the sentencing attachment so the MJ theoretically wouldn't know about thwe waiver until the end. I can't say I'm against that tweak to my ideas, though if waivers become the norm, the MJ would probably expect it ebven if he didn't actually know for sure.

Anonymous said...

I guess one option could always be a "Davis" plea: accused actually enters not guilty pleas pursuant to PTA, but also agrees to a confessional stipulation as to all the essential elements of the offense and further agrees to call no witnesses and present no defense. It would take a fraction of the time of the normal guilty plea -- only a limited Bertelson-type inquiry is required -- and CAAF saw no problem with it. See U.S. v. Davis, 50 M.J. 426(CAAF 1999).

Anonymous said...

Military defense counsel are officers and generally conduct themselves as such, in stark contrast to what I have seen in state criminal courts where it is often hard to differentiate between the accused and his counsel in terms of general appearance and personal hygene.

Anonymous said...

Last anon, are you saying that counsel can begin to look like their clients? Kind of like how pet owners curiously - over time - begin to look like their pets?

This is true, but it also has the flip side, Government attorneys begin to look and smell like the Government after a while. They begin speaking in obtuse bureacratic language and lose their sense of humor and humanity, while acquiring the perfunctory government scowl. And the smell? Like a new car - if you are into that.

Back to the providency topic. Perhaps this is much ado about nothing. Considering the maybe 3,000 guilty plea cases a year, how many does CAAF end-up scrutinizing?

Anonymous said...

Bottom-feeding criminal defense attorneys fall into two categories: 1) zealots that truely believe that the government is evil; and 2) whores for hire, who care not about crime victims.

Anonymous said...

Last anon, a very nice strawman / ad hominem combo. I give you a 7.5 for form and an 6.6 for difficulty. Combining two categorical fallacies in one argument is tricky.

I am a defense attorney who believes that America is the greatest country in human history and that the American government is great. Most defense attorneys feel the same way.

I am sorry that you are so reductionist and simple-minded in your thinking - as exhibited by your post - and have been so repeatedly beaten-down by defense lawyers of superior intellect, that you feel the obvious need to vent on a blog, off-topic, and incoherent. The topic is providency. Are you angry that the evil defense attorney did not make his client plead guilty twice?

As to your "evil" non-sequiter, I believe that the the government is capable of error, and in some cases, that evil can result. I also believe that this is consistent with the founders' view of human nature and of government.

While it may be true that defense attorneys do not "care" about victims, at least not in the way you imply they should, I would be very careful about overestimating how much the government "cares" about anybody. So while you pose - at least by implication - as a law-and-order conservative, the premise of your argument consists of socialist mush. Those who love liberty do not trust the government. or its agents. (Example, ask a flag-waving gun-owner)

BTW, on-topic, if defense counsel truly believed the government was "evil," we would never urge our clients to plead guilty. Instead, we would use these clients as props in our struggle to fight the man. But we don't.