Thursday, June 12, 2008

Raynor's formula: rehearing + new charges = interesting issues

In United States v. Raynor, __ M.J. ___, No. ACM 35449 (reh) (A.F. Ct. Crim. App. June 12, 2008), the Air Force combined a retrial on old charges with a new trial of other charges. So that would be something old, something new, and something wild blue.

The defense and the CA entered into a deal in which the defense would ask the military judge to essentially adjudge separate sentences for the old charges and the new charges. The PTA would then cap what the CA would approve for each. If the military judge declined, the PTA also included an aggregate cap. The sum of the individual caps could equal, but could also fall below, the aggregate cap. The military judge partially played along, but the sentence that he imposed and its rationale would have hit the aggregate cap in either event.

On appeal, the defense attacked the PTA, arguing first that the PTA's alternative approaches resulted in the PTA being ambiguous, thus allowing Senior Airman Raynor to withdraw his guilty pleas. Second, the defense argued that the PTA was against public policy because it invited the military judge to violate the deliberative process privilege by revealing how he reached his sentence. AFCCA rejected both challenges. AFCCA found that the PTA's terms were clear and that SrA Raynor demonstrated at trial that he understood how they would work. As to the second argument, AFCCA found that asking the military judge to announce separate sentences was reasonable given the case's unusual procedural posture.

The next issue was one of first impression: whether the concept of unreasonable multiplication of charges can limit the government's charging decisions in two successive courts-martial of the same servicemember. Yes, ruled AFCCA. The court reasoned: "A fundamental concern underlying the doctrine of unreasonable multiplication of charges is the potential for abuse of discretion. The potential for overreaching in the exercise of prosecutorial discretion clearly can occur in successive prosecutions. We . . . hold that unreasonable multiplication of charges may be raised in a successive prosecution." Id., slip op. at 6-7 (internal citation omitted). But AFCCA went on to rule that there was no UMC in this case.

AFCCA set aside the adjudged forfeitures to cure an Emminizer violation. It also set aside a finding of guilty to a child assault charge on statute of limitations grounds, applying United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). But the court didn't award any meaningful sentence relief as a result.

1 comment:

John O'Connor said...

I don't get the argument on the PTA. The PTA capped confinement at 4 years for the original charges and 16 years for the new charges. If the MJ wouldn't announce separate sentences, then all charges were capped at 20 years. The MJ wouldn't announce separate sentecnes but said he would have sentenced the accused to five years on the old charges. That means you could deduce that the accused was getting 25 years on the new charges.

The only way this scheme could have two different results would have been if the MJ announced separate sentences for the two sets of claims and one of those punishments was less than the cap for that set of punishments . . . which didn't happen.

So this part of the case seems easy to me. The deal is okay bcause it's voluntary, even if it could result in two different possibilities depending on what the MJ was willing to do. Even if the deal violated public policy in some bizarre way, there's no prejudice here because the MJ's disclosures made clear that the accused was going to end up with 20 years of unsuspended confinement anyway.

Overall, though, wouldn't it have been cleaner to have two courts-martial?

And to quote one of my former military judges: "couldn't they have figured out a way to charge this to create a longer maximum sentence"? This guy has "throw away the key" potential from the described charges, at least to me. But maybe that's the father of daughters talking.