Inabinette: Clarifying the standards of review for providence inquiry challenges

Today's CAAF decision in Inabinette is destined to become the most cited of the term. United States v. Inabinette, __ M.J. ___, No. 07-0787/MC (C.A.A.F. May 22, 2008). The case explores the proper standards of review for appellate challenges to providence inquiries -- one of the most common issues raised in military appeals. Briefs and CCA opinions for years to come will feature Inabinette in their "Standard of Review" section.

And while Inabinette was a win for the Government, the standards of review that it adopts seem fairly defense friendly.

The immediate issue in Inabinette is whether Sergeant Inabinette's guilty pleas were rendered improvident by the E&M testimony of a board-certified forensic psychiatrist that at the time of the offenses, Sgt Inabinette "suffered from Bipolar I Disorder with psychotic features." No, ruled CAAF, largely because the military judge identified and resolved the issue.

But much more important than the actual holding were CAAF's obiter dicta. CAAF laid out the following principles for reviewing challenges to providence inquiries.

1. A "military judge's decision to accept a guilty plea is reviewed for an abuse of discretion." Id., slip op. at 4 (quoting United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)).

2. "A military judge abuses his discretion if he fails to obtain from the accused an adequate factual basis to support the plea -- an area in which we afford significant deference." Id., slip op. at 5. [Aside: Am I the only person driven crazy by use of the male possessive pronoun and male third-person singular personal pronoun in connection with "[a] military judge"? In Making Your Case, Justice Scalia actually defends use of "he" "as the traditional, generic, unisex reference to a human being" and expresses his belief "that 'he' means, and has always meant, 'he or she' when not referring to a male antecedent." Antonin Scalia & Bryan A. Garner, Making Your Case 119 (2008). I had to be restrained in a straight jacket after reading that.]

3. "[A]ny ruling based on an erroneous view of the law also constitutes an abuse of discretion." Inabinette, No. 07-0787/MC, slip op. at 5.

4. In reviewing a military judge's acceptance of a plea for an abuse of discretion, appellate courts apply a substantial basis test: Does the record as a whole show a substantial basis in law OR fact for questioning the guilty plea? See id., slip op. at 5-6.

5. "Within this general framework, distinct questions may arise for which an appellate court will review a plea using a de novo standard of review, such as in those cases where the providence of a plea raises pure questions of law." Id., slip op. at 6.

CAAF concluded this section of its opinion with this helpful recap: "[W]e review a military judge's decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo. In doing so, we apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant's guilty plea." Id., slip op. at 7.

Judge Baker wrote for a unanimous court.