Saturday, November 15, 2008

Ratio of guilty pleas to contested courts-martial

Here's an interesting statistic from the new issue of the Army Lawyer: "In Current Year 2006 [I assume that should read Calendar Year 2006], the ratio of the 1358 [Army] courts-martial was approximately 75% guilty pleas and 25% contested." Lieutenant Colonel Edye U. Moran, The Guilty Plea -- Traps for New Counsel, Army Law., Nov. 2008, at 61, 62.

The article also contained a piece of advice that clanged to my ear: "Trial and defense counsel both have a responsibility to assist the court by listening to the military judge's question, taking notes, and asking the judge to follow-up on particular questions that bear further inquiry." Id. at 65. Judge Moran adds, "Listening and asking the proper follow-up questions can make the difference during appellate review of the case." Id. at 66. Exactly. Why on earth would the defense want to propose some additional question that could kill a potential appellate issue? There's a huge difference between preparing the accused to make it through the Care inquiry and, once the military judge has decided to accept the plea, calling the military judge's attention to a time bomb that he or she has inadvertently put into the record. There should almost never be a time when a defense counsel answers with anything other than, "No, Your Honor," when a military judge asks both parties if they have any additional questions at the end of the providence inquiry. (Probably the only rare exception should be where the defense counsel can propose a question that would elicit extenuating information.)

I know of nothing that places on the defense "a responsibility to assist the court" by calling the military judge's attention to a flaw in the providence inquiry that could result in appellate relief and Judge Moran cites no such source of authority. While I'm sure military judges would like the defense counsel to help bullet-proof the providence inquiry for appellate purpose, that seems to reflect some confusion about the defense counsel's role.


John O'Connor said...

I agree. One of the TC's most important duties is to make sure you know the elements and the relevant case law, and that the case not go forward beyond providence if the accused's providence testimony is shaky. Accuseds tend to minimize during providence because the MJ will sentence them and because that's what humans do. The TC needs to make sure the minimizing that invariably occurs still leaves you with a crime. The DC can read a Spider-Man comic during providence if he wants to.

Dew_Process said...

I agree Dwight - indeed, it may very well be an ethical violation, abandoning a client, failing to zealously advocate, etc.

This is particularly true in "mixed" plea cases. It is the TC's responsibility to insure that the Care inquiry meets the minimum standards. DC only has a duty to "correct" an obvious misstatement, but if that comes from the mouth of the Accused, you had better ask for a recess and talk to the client privately.

Here's a classic (and recent) example:

MJ: Counsel, what advice did you give the Accused regarding self-defense? [in an assault case]

CDC: My advice to my client is privileged Your Honor, but we would not be pleading guilty if self-defense was an issue.

MJ: Answer my question, counsel.

CDC: Respectfully, no, Your Honor.

We spent an hour+ arguing over "privilege" when all the MJ had to do was ask the Accused, the pertinent questions. The Care inquiry is a colloquy between the Court and the Accused, not counsel.

Anonymous said...

Consider this: client pleas guity with PTA; affirmative defense not mentioned by the tds counsel at trial; overturned on appeal; client now subject to higher possible sentence then originally approved by CA. Its a fine line between being zealous and being ineffective.

Dwight Sullivan said...

1833 Anon,

In that scenario, the accused would only be subject to the possibility of a greater sentence if both of two conditions are satisfied: (1) the original court-martial sentence exceeded the PTA's cap; and (2) the accused pleads not guilty at the second court-martial.

Simply by pleading guilty at the second trial, the accused can keep the benefit of a PTA. See Art. 63, UCMJ; R.C.M. 810(d)(2). When one or more findings of guilty are set aside and the case is remanded to the trial level, generally good things happen for the accused. And it's within the accused's power to ensure that nothing bad happens.

John O'Connor said...

I guess I should add one caveat to my comment that a DC can read a Spider-Man comic book during the providence inquiry. If the accused wantrs to keep his deal, the DC needs to make sure that the accused doesn't say something that causes the MJ to throw out his plea. But if the MJ and TC are willing to take the plea, then that's good enough for the DC.

I had a larceny case where the civilian DC had obnviously prepped up the accused to walk a fine line on whether he intended to return the explosives he had stolen. I kept telling the MJ that I thought the accused's testimony didn't state a larceny offense. The MJ was fairly irritated but the accused teventually gave up what I thought I needed to prove the offense. Afterward, the MJ told me that as the case had gone along he really appreciated that I hadn't backed down and allowed an appellate issue into the record.

Toussaint-Guillaume Picquet de la Motte said...

Question: Accused gets a good PTA that results in certain charges being dropped, a guilty plea to an LIO, waiver of forfeitures..(fill in the blank on any provision negotiated that the accused really wants). The accused wants to sever all ties with the military and move on. Should the DC remind the MJ if he forgets a critical question in the Care inquiry? Or should the DC remain silent knowing the case might bounce on appeal bring the accused back for further proceedings and expose him to greater charges? I caution telling the DC to "do nothing" with the reminder that junior counsel read this blog and while they should be getting mentorship for more experienced officers we know that is not always the case. Not a sermon.

John O'Connor said...


The accused can always protect the prior deal by advising his appellate counsel not to challenge his conviction or by repleading providently on any remand that happens through the CCA's independent review of the rexcord (Ha Ha). The only risk is if there is a "wink wink" deal where other charges are dropped but not explicitly as a term of the PTA.

Dwight Sullivan said...


To follow up on JO'C's point, the TDC in that scenario should never let the case reach appellate review. If the client still feels the same way after the CA acts (and, of course, the client might not), then the TDC should guide the client through a waiver of appellate review. That will result in speedy execution of the discharge. Forwarding the case for appellate review would carry the danger of a specified issue or just general delay. (In the Air Force, for example, there's been a rash of cases unreasonably delayed at the record forwarding stage of post-trial review.)

And in that scenario, no, the TDC still shouldn't help out the MJ with the Care inquiry. The client may later change his or her mind, in which case a time bomb in the record is helpful. If the client doesn't change his or her mind, then appellate review should be waived and the time bomb in the record will never explode.

Toussaint-Guillaume Picquet de la Motte said...

Regarding appellate waiver, I agree. And i even renew the debate of being able to waive it pre-CA action as part of a negotiated plea.

Regarding the the point of ensuring a Care inquiry ask the appropriate questions to ensure you client's wishes are complied with, I disagree.

Dwight Sullivan said...

I second the Count's motion to allow the accused and the CA to bargain for a waiver of appellate review.

But I disagree with the Count that by suggesting additional Care inquiry to a military judge who is already prepared to accept the accused's guilty plea, a defense counsel "ensure[s] [the] client's wishes are complied with." Plugging a hole in the providence inquiry is neither a sufficient nor necessary condition for expeditious execution of a discharge. In fact, it isn't reasonably related to the timing of the discharge.

Dew_Process said...

Remember the "Thou Shalt Do No Harm" to your client rule - it is TC's responsibility to "protect the record," not the DC's.

There may be situations that warrant insuring a "clean" plea, e.g., the so-called sweetheart PTA, but as noted, you can always waive appellate review, to include a post-trial agreement where there is a screw-up in the Care inquiry.

Or, there could be an intervening change in the law, e.g., Crawford, that makes it a new ball game and the Accused may change his/her mind.

Once the client makes an informed decision to plead guilty, a competent DC will privately go through the Care inquiry with the client to "work out any bugs" and deal with potential defenses. But, clients say the damnedest things and you need to be on your toes as DC to insure that what's on "the record" is what you and the client had previously discussed and to insure that there's no perjury.

Ironically, there was an issue with the providency of Denedo's plea originally - a lengthy recess "cured" the problem, he wanted and needed the "benefit of the bargain," i.e., not being subject to being deported.

Anonymous said...

I have read the PTA in Denedo. No where did it say anything about being deported. Neither side, when questioned by the MJ said there were any other provisions not memorialized. Therefore, deportation was not part of the PTA. Implied or actual.

Anonymous said...

According to Denedo's Writ Application and Affidavit, the gov't agreed to a Special CM forum in exchange for the pleas, upon the advice of counsel that he would then not be subject to deportation.

The gov't conceded that the SpCM was "negotiated" as part of the plea deal in their writ-appeal opposition at the CAAF.

Anonymous said...

Anon 10:02 that does not mean that it was part of the plea agreement. THat is specifically why the MJ asks that question. What Denedo may have received as a result of the plea that was not in the agreement is not the concern of the government. Or should the government now get into the business of asking the accused to waive is A/C DC privilege to make it clear?

Tami said...

There are certain times when a DC will want to speak up to ensure the providence inquiry is adequate. The rules say that if an appellate court busts a guilty plea for being improvident, not only can the accused be reprosecuted for the stuff he pled guilty to, if serious charges were dismissed as part of the PTA, they can be resurrected at a rehearing, and subject your client to the max punishment for those offenses, plus if the client got the benefit of the quantum, he loses that too. I agree that DCs have to make sure the client is provident before going into court, but sometimes clients will either have a last-minute change of heart, or there will be something the client says on the record that he didn't tell the DC. If the client got a sweetheart of a deal, then I would think DCs would want to do everything possible to protect that. As far as waiving right to appellate review to prevent appellate court from busting the guilty plea, I think that just sets the DC up for an IAC claim down the road--very bad idea.

Anonymous said...

Anon 06:27 - It should be a concern of TC. When the level of court-martial is negotiated as part of the plea, whether or not it's in the written PTA is one thing, but it surely should be disclosed to the MJ. But, in Denedo, the government has conceded that this was part of the original deal, whether in the PTA or not.

That's one of the reasons that Denedo is as screwed up as it is. It's also one of the reasons that the Care inquiry is supposed to cover "sub rosa" agreements. How would this ever impact the A/C privilege?

Anonymous said... about the duty of candor to the court. Deliberately building in improvidency is unethical because you are encouraging the client to perjure himself. Duh.

Dew_Process said...

how about the duty of candor to the court. Deliberately building in improvidency is unethical because you are encouraging the client to perjure himself.

Anon 12:41 - please explain your point. Of course there is always the duty of candor. But, I don't read any of the posts on this thread to either encourage perjury [which you have a duty to correct in any event] or to "deliberately build[] in improvidency."

For example, if a MJ fails to discuss an element of an offense, there is no ethical duty on behalf of the Court to point that out. It may (or may not) be in the Client's best interest to do so, but that's a separate issue. Covering the elements is the TC's responsibility.

While it may seem counter-intuitive, from a purely "ethical" perspective remaining silent [again, not dealing with perjury by the Accused], is permissible. But, if the Court affirmatively asks, "Counsel, have I covered all of the elements," then the duty of Candor requires an honest "No" answer.

I highly recommend to those not already familiar with it, the treatise, Professional Responsibility in Criminal Defense, 3rd ed., by JW Hall, (West Thompson).

Anonymous said...

I am the author of this article that Mr. Sullivan has deemed contains a piece of advice that "clanged in his ear." I am a former Army DC who worked at TDS Headquarters when Mr. Sullivan came for a capital litigation seminar. I am currently an asst federal public defender working on crack reductions. Though I have the utmost respect for Mr. Sullivan, he has misconstrued my point. This article was written for new counsel--and with the general presumption that if you, as a DC, are advising your client to plead guilty, you will assist him in getting the benefit of his bargain. DC who are present in body but cognitively "checked-out" in the courtroom, can do irreparable harm. I did not mean to imply that DC has a duty to defuse appellate issues --what I have seen, all too often, is the DC who has not listened to his client, and is not now listening to the military judge. A wise DC is vigilant/mindful and forthcoming with the military judge. Ineffective assistance of counsel is one appellate issue DC should defuse. V/R Edye Moran, COL