Saturday, February 21, 2009

NYT article on Martinez PTA offer

I don't know how I missed this yesterday. Yesterday's NYT had a lengthy article about last year's Martinez capital court-martial that ended in an acquittal at Fort Bragg. Here's a link. It reported that two years before the trial, the defense made a written PTA offer, signed by Martinez and his two defense counsel, to cap the sentence at confinement for life with eligibility for parole. It also reported about the convening authority, Lieutenant General John R. Vines, rejecting the offer. I wonder how that particular document came into the possession of the New York Times. Interestingly, one of the prosecutors in the case, Major John C. Benson, is quoted as saying, "I don’t think there can be any doubt whatsoever as to his guilt."

26 comments:

John O'Connor said...

When I was a TC, I had convening authorities (usually new ones) tell me they wouldn't deal, particularly on drug cases. I would say, "sir, there's ALWAYS a deal to be had," and I would explain that a drug pop had a 1/3 chance of acquittal if all we had was the drug pop. And sometimes the CA would balk and swear HIS officers would never acquit one of those cases. And then we'd have a pop and an acquittal, and the CA would then say, "ok what are my options with this Marine now." And I would tell him he has no options.

Sometimes you just need to take the deal.

Anonymous said...

I agree CAAFlog, this is a troublesome article because of the release of the document. I highly doubt this was released under a FOIA request. Also troublesome is the discussion in the article about the defense counsel's knowledge of the accused's purported guilt and the continued public quotes from the prosecutors even after trial.

Barbara Allen said...

Seriously, Anonymous? THAT is what troubles you - the release of the document and the fact that Major Benson-now retired - is the only one who did not run away from this story when it broke? What about the SJA looking me in the eye and stating he has no knowledge of any OPG ever offered.
I appreciate you recognizing DC's knowledge of their client's guilt, but am unsure if it is their knowledge of his guilt or the article's mention of this that has you concerned.
The government had a conviction in their hands.General Vines' reckless decision has cost us more than we can ever regain.
Major Gregory stood in the courtroom and declared 'Staff Sgt Martinez didn't do it" in spite of his knowledge to the contrary. Is there no accountability in the military, or is it selectively applied by those in power?

Anonymous said...

I wonder if the families were consulted when the offer to plead guilty was being considered?

John O'Connor said...

Why is it troublesome that an accused's offer to plad guilty to heinous crimes became public knowledge once he was acquitted and it couldn't affect his trial? Does Martinez have some right to a privilege with respect to his offer to plead guilty in return for LWOP?

Barbara Allen said...

No - Our families were definitely not consulted about a plea. And with all due respect about martinez's expectation or rights to privilege: The OPG is an official document and is included with allied papers, subject to FOIA requests. The NY Times successfully submitted FOIA requests for transcripts in the past.
Victims have rights, too, although in this case none were afforded us. We had a right to be informed of the plea.
Is there anyone here who can explain to me - please - why this is acceptable?

Anonymous said...

Ms. Allen,

You're correct, you had a right to be informed of the offer. Yet ask yourself, honestly, whether -- before having known the ultimate outcome -- you would have accepted it. I suspect from your previous comments that you would not have, and that you would have fully supported the convening authority's decision to reject the plea.

Your only mistake was viewing the prosecution, which represents the interests of the convening authority AKA "the government", as somehow representing your own interests. Alternately, you may have been imprecise in expressing your own interests (i.e., Did you ever state unequivocally that wished to secure a conviction to the crime, even if it included the guarantee of a sentence which you would not view as being just?).

Victims (or their surviving family members), beware: the prosecutor -- no matter how they might otherwise seem -- represents the convening authority, and not you.

Barbara Allen said...

Actually that is a lesson we learned early: The trial team represented the govt and we were on our own.
In April 06 I knew even less about the case and the laws pertaining to it than I do now. I had no idea what was involved in carrying a capital case through court martial. Especially a circumstancial one. Furthermore,informing victims of a plea's existence and seeking their opinion on the matter does not equate to granting them the authority to make the decision. If victims did have any standing to make decisions, rest assured we would have done several things differently. As DC so often reminded us and anyone else who listened, we were not parties to the case and had no legal standing. The responsibility was the govt's here.
I had a Captain acting as a liason for me throughout the years. He is a JAG officer and began urging me to consider a plea well before April 06. He also asked the govt about any pleas and was told none existed. I trusted him and he did have our best interest in mind.
General Vines, as the decision maker in this case, was certainly in a better position than us to weigh all the options and consequences of refusing a plea. I stand by my opinion that he was negligent in refusing to accept it, and morally unethical by supressing it from the families.

Phil Cave said...

1. In my experience it is not unusual for prosecutors and SJA's to fail to comply with various regulations on notifying victims of potential PTA's, and soliciting their input. They do not have to accept the input, but get it they must. Typically of course I'm involved at that point because I have a victim who is willing to support a PTA.

2. I take issue with the premise that the defense counsel could not ethically represent the accused after the PTAO was rejected. That's too simplistic an approach.

3. I think also MG Huffman's comment may have been lost in writing. The defense counsel doesn't have to know the client really is guilty. What they have to know is that the client is voluntarily willing to admit what they are charged with and provide sufficient facts for a provident plea, and that the facts are reasonably consistent with the investigations facts.

4. I think this case is exemplary of what many of us, as defense counsel, see and experience. An early "reasonable" offer is rejected out of hand (with the attendant hubristic posturing by trial counsel). The client says fine, let's contest. And then you get your acquittal, or conviction on LIO's, or "beat the deal." "Mitigation through Litigation," is what I call it. While it is surprising in such a high profile case, it's the norm on a lot of cases.

5. I'd be interested in the reaction of prosecutors and defense counsel who frequently do death penalty cases -- would they have taken the offer? What I'm thinking here is the military's relative inexperience in death penalty cases.

Barbara Allen said...

It may be surprising to hear, but I can't fault DC for proceeding to defend their client. In this one situation I feel they were compelled to do so when the OPG was rejected. I simply take issue with how they defended him, as I believe they could have done so without assailing Cpt Esposito and dismissing us in the process. But that is not the issue.
The fact that you find it not unusual for the victims to be uninformed about pleas represents one of the problems that should be addressed. If it is common practice for this right to be denied then we are not the only ones who have been further victimized by the system.
Your third point, though, is something I imagine will be debated for much longer than this case will be in anyone's memory. If a defense counsel knows :
"... the client is voluntarily willing to admit what they are charged with and provide sufficient facts for a provident plea, and that the facts are reasonably consistent with the investigations facts."
the only logical conclusion is the the client is guilty. If a defendant stands in court and relays how he committed a crime in enough detail to satify a military judge, that client cannot then profess innocence. DC in this case had to know their client was guilty. They are intelligent individuals who did what they were assigned to do: defend their client. That does not change the fact that Alberto Martinez has gotten away with murdering Phil and my husband, courtesy of numerous mistakes in the handling of this case.

John O'Connor said...

Phil Cave makes a good point. I am hard pressed to think of a situation where the government should reject a LWOP PTA is a court-martial case. Given the inexperience of military TCs and DCs in trying death penalty cases, the apparent squeamishness of the CCA and particularly the CAAF (this is my opinion and not stated as fact) when it comes to death penalty cases, and the considerable costs (monetary and non-monetary) to the military in trying a death case (with the likelihod of doing it at least once more if you're serious), LWOP is a mighty attractive PTA for the government.

Biff (not Legrand) said...

Question:

Who makes the call as to whether to accept a plea in a capital case? Is it the GCM authority?

If so, then the disparity between the military and federal civilian practice is notable; in the former it's a relatively low level official with no likely no legal expertise; in the latter it's the US Attorney General.

I mention this because if you want the decision to be based on appellate court squeamishness, litigation costs, and poor advocacy, then you're more likely to have those considerations matter when a lawyer is making the decision.

Phil Cave said...

Yes, the GCMCA makes the decision; and that would have been Vines.
He has the advice of senior judge advocates.
Biff, not "the Biffster?"

Anonymous said...

This blog provided links to a number of site post-verdict. One of them was to the lower Hudson News regarding PTA overtures. I clearly remember reading that article and the victim’s widows acknowledged a PTA offer but indicated that they wanted the entire truth to be know and that is why it was not selected. I went to that blog and the link has now been disabled. What gives, in light of this new report?

Anonymous said...

So...the accused committed murder, and yet the defense bar still celebrates the acquittal. Major Benson is, apparently, the only honest man in the whole courtroom.

Barbara Allen said...

One of the things we have been frustrated with is the sometimes inaccuracy of the media reports. The article that reported we had been approached with a plea offer is the biggest example of this. We were furious when that was reported becasue it is completely untrue. We contacted the reporter and the editor and they refused to print a retraction.
What did happen is this: In the fall of 2005 we received a phone call from Iraq. The prosecutor asked us our opinion on several issues such as our wish to attend the hearings, if we would like to meet with people who knew Lou and PHil, ect. On that list of topics,a plea was mentioned. It was empahsized to us no such plea had been offered, but if one was presented how would we feel about it. Keeping in mind this was within months of the murders, and the reports we received had all conflicted with one another. We had been told our families were causing problems and one Major told us to sit back and let them do their jobs. This phone call came on the heel of all of that. We had every reason to believe there was something suspicious about the call and no reason to believe it was in our best interest. We had been mislead about the murders and the arrest. Not necessarily intentionally mislead, but nonetheless we were confused and completely out of our element. In response to the question about a plea, I asked if we would then be able to be present for any court appearances, would we be able to speak with those who were there that night, would we find out everything that happened? I was told not necessarily, as any court proceedings at that time would take place in Iraq. It was unknown if the army would get us there for any sentencing hearing or not. Witnesses would redeploy home and we would have as many answers as we were able to obtain from meeting with govt reps. afterwards. At which point I then said I would not support a plea.
At the time that conversation took place, no OPG was signed. The article referenced on this blog misinterprets things and casts the blame on the victims, as has often been the trend in this case.
And yes, Major Benson has been professional and dedicated throughout this case. He is the sole individual in this whole process who maintained the practice of being honest with us, even if we didn't like the news he had to convey. He accepted responsibility when things went wrong, and passed on the credit when thigns went well (Not that that happened often).

Anonymous said...

Why didn't Benson tell you of the actual OPG? Do you think the Govt was relying upon your previous statement that you would not support a plea? I mean, if your previous statement indicated that you wanted "an eye for an eye," then I think the Govt had your input and it may be said that the plea offer was rejected based upon family member's desires.

On a related point, I would assume the many in the Govt house would be inclined to be adverse to a plea and may have provided you with input that was skewed in this regard. As all lawyers have egos, we all want to be part of cases/issues that transcend time and can be talked about at conferences and CLEs, in the subtle way we attempt to impress our contemporaries. A guilty plea for life hardly qualifies in a case that appears, at first blush, to be a ready made death penalty case, ala Quintanilla. Despite the fact that the death penalty may never be imposed, the Govt attorneys still "make their bones" on achieving that sentence. Thus, I wouldn't be surprised had the advice you received been slanted toward not accepting any plea, if offered.

Anonymous said...

Concur with possibility of advice to reject plea being slanted against rejection, but I'd guess it was due to honest but mistaken view of case as "slam dunk" conviction, vice personal ambition.

Barbara Allen said...

I must have miscommunicated my views somewhere along the way. In spite of my advocacy for the death penalty through the first couple of years of this, I never really believed he would be executed even if it was imposed. For all appearances it appears the military's method of execution is death from natural causes. 1961 is a long time ago. There was no "Eye for an Eye" mentality in my mind. I just wanted him to spend the remainder of his days on death row, with the uncertainty hanging over him. Spiteful? Yes it is, and I plead guilty to that. I have long been undecided about the DP. In my case, that realization was a slow and painful process. But by time we were at trial I felt less hatered for Martinez and more contempt. I didn't want to let him steal anything else from us. And I did not want to raise my children with the possibility of them attending an execution 30 or 40 years from now. I wanted to free them from this, as best as they can be free. LWP was a perfectly reasonable outcome for me. So the thought that in any way I contributed to this disaster is something I will not forgive myself for. What I will not accept, though, is Colonel Gade, who was SJA in 2006, and General Vines not being officially reviewed for their careless decision and the manner it was carried out. It is dangerous to cast responsibilty with the victims, when we are powerless in the process.

Toussaint-Guillaume Picquet de la Motte said...

Quintanilla is certainly discussed at a lot of CLEs and all of the JAG schools but not for the reasons suggested.

Anonymous said...

Major Benson should be appointed to the Federal Bench, when he leaves the service.

Anonymous said...

I assume from reading all the articles that the defense did a standard and ethical “reasonable doubt” defense. It looks like the defendant was well represented. Capt or Major Gregory is a certified genius with a good personality that I’m sure the panel members would have trusted and found credible.

In the NY Times article it states that:

Major Benson, the Army prosecutor in the case, said several factors could have swayed the jury in the sergeant’s favor. “A strong opposition to death penalty was a definite factor among some of the panel members,” he said. “It’s quite possible that they were not able to separate the conviction from the punishment.”

Major Benson should avoid publicly blaming the jury for coming back with the wrong verdict. I feel that it is inappropriate and harms the justice system especially when it appears to be just sour grapes.

Instead of blaming the panel members for supposedly having an opposition to the death penalty and not being able to separate the punishment from the conviction (really I didn’t know that military members had such a strong opposition to the death penalty – That’s news to me); Major Benson needs to take responsibility for his own actions that may have contributed to the Not Guilty verdict. It was reported in a prior post that he was admonished by the judge for laughing during the trial. It that’s true and if he had anything like that type of demeanor in front of the members I can completely see the possibility that the panel members would have a negative reaction to him and the case that he presented to them.

A legal case usually isn’t (and definitely shouldn’t be) decided solely by the personality of the lawyers, but in reality the saying “you are the message” is a fact of life. Jury’s look to the lawyers and if they find one lawyer more credible than the other they will naturally be more inclined to accept the version of events presented by the more credible lawyer.

Barbara Allen said...

I'd thought I could let this go for the time being but your post begs a response.
For starters, I have to agree with you: Annoying and insulting to us as they may have been, Majors Gregory and Cipriano did brilliantly defend their client. They first wore out one judge, until he voluntarily stepped aside to pave the way for Colonel Henley to preside. They tirelessly argued every minute detail imaginable, and succeeded in whittling away a once solid wall of evidence. They cast doubt on virtually all the witness testimony, and appear to have convinced at least one Member the 1SG could be the guilty party. Thanks to Colonel Henley's unwillingness to reign them in, DC did in fact manage to seat three members strongly opposed to the DP. A husband and wife team on the panel openly stated their strong disbelief in the DP, so much so the wife said even if her own 8 year old sone were murdered, she doubted she would seek the DP for his murderer. Colonel Henley allowed DC carte blanche with these two members, and Major Cipriano alternately badgered and coaxed them until they finally conceded they would "consider" the DP if ordered to do so. I can't fault Major Cipriano for this: He simply took advantage of Colonel Henley's partial leanings toward the defense, and ran away with it. It was clear to all those present each of the Crespos would never vote for the DP, and were uncomforatble being in the position to do so. I firmly believe this played a huge part in the verdict, as the presence of the DP dominated their deliberations. A third member, SG Sheperd, was seated in what I see as Colonel Henley's greatest straying from the path of defendable rulings. SG Shepard wrote on his questionnaire of an experience where he felt he was framed by CID. He stated a distrust of CID and its agents, and during voir dire he reaffirmed those beliefs. He also stated he was opposed to the DP. Again,Major Cipriano kept at Sg Sheperd until he too grudgingly conceded he would "consider" the DP and would separate his experience with CID from this case. Govt argued to excuse all three members for cause, and was denied. Govt then issued a peremptory strike against Sg Sheperd. At that point, it was the 5th round of voir dire, with 13 members seated. We needed one more. Colonel Henley gave DC first dibs on perepmtory strike, and their chosen member was dismissed. Col. Henley then asked Govt if it wished to exercise a strike, only after noting doing so would bust the panel, and there were no more members available for the following day to begin round 6. Govt issued a strike against Sheperd, Colonel Henley adminished Major Benson for daring to do so, DC challenged, and Colonely Henley disallowed the strike! We prodeeded to trial with three members who would not convict in a capital case. Period.
As for media reports about Major Benson being admonished for laughing - wrong. It was Colonel Huestis.
Based on panel member's reactions to DC during voirdire and in the trial, I don't think any of them liked listening to them any more than we did. Major Gregory's tantrums were embarassing to watch and members actually laughed at him. I think the three members were petrified of touching a capital case. I have personal opinions of other members as well, but won't go into them here. Suffice it to say: Had we proceeded to trial with an impartial judge and panel, we would have seen different results. And Major Benson is the only individual who has come forward to claim any responsibility for anything he feels he may or may not have done to result in an acquittal.
It sounds as if you are a friend of defense counsel, or getting your facts secondhand. I make no pretense of not being bitter about this, but rest assured what I write here is documented on the record, with the exception of course being my speculations about which members voted which way. Their views about DP and CID, however, are on the record.

Anonymous said...

Thanks for the additional information….I’m extremely sorry that you have had to go through not only the crime itself but the fact that the defendant was found not guilty. I certainly don’t mean any disrespect to you and I don’t want to get into an academic debate about the legal system with the victim of the crime. You have a right to be upset with the result and the system…I just wanted to point out that I don’t think it’s appropriate for a lawyer to publicly criticize a jury for the verdict they give. Jury’s do the best they can with the information they have, it goes without saying that the jury probably would have found him guilty if they had known that the defendant had offered to plead guilty to Life and testify under oath about all facts and circumstances of the crime and fully admit that he was 100% guilty and had no defense.

But when an attorney does a post-mortem to figure out what went wrong its usually more productive to consider what he or she could have done better to achieve their goal instead of just blaming the jury for the wrong verdict….But that’s all just an academic debate; your feelings are certainly justified….

Barbara Allen said...

I share in your preference about academic debates, as I am obviously not educated in these matters, and speak only from personal experience. I am just unable to refrain from jumping in sometimes.
The govt. has washed its hands of this case but I clearly cannot. I am having a difficult time understanding why the govt. refuses to acknowledge mistakes were made and strive to avoid repeating those same mistakes. That, too, is a debate for other forums.

Anonymous said...

Just from my general knowledge of the case, it seems that the Military Justice system worked like it was supposed to. Juries are always a wild card no matter what kind of case it is. If the jury had come back with a guilty verdict the Convening Authority would have been considered smart and tough by rejecting the plea offer. Even though plea bargains have bad reputation, it is the preferable way to resolve a case because there are no surprises for any party. A well negotiated plea agreement is approved by everyone: defendant, victim, and government. Everyone gives something, but everyone gets something; instead of the all or nothing of a trial and an unpredictable jury.

The problem I see in this case is that they didn’t consult the victims about the potential plea. That in my opinion this is a serious deficiency by the JAG lawyers.

I obviously don’t know what happened in this particular case, but I’ve seen this type of scenario happen routinely: The Convening Authority said there was no way he would approve anything less than X punishment for crime Y. The SJA saluted and said, yes sir, and then assigned the case to a relatively low ranking lawyer. In military culture it is very hard for the lowly trial counsel to go to the SJA and say that he might lose and it might be better to plea this case, and then even harder for the SJA to go to the General and tell him that there is a risk that they might lose and that he should approve the plea offer. Officer’s don’t get good OPR’s doing that.

When I was on active duty there was one Convening Authority who made it an absolute rule that all drug cases had to be referred to a General Court-Martial. That cost more money for an Article 32, dragged the case out longer, and was generally pointless because judges and juries only give sentences in the months for one-or-two time drug use cases. But the General wanted to be tough on drugs….

If there is one radical, structural change, I think that would fix this is for the lawyers to be the decision makers like in the civilian world. In civilian life the District Attorney or another high ranking Assistant DA would actually be the one trying a high profile case like this and would have a better understanding of the risks and benefits of going to trial and what the case is worth in a plea agreement. And the DA would have the authority to make a decision (preferably, of course, after consulting with the victims).