Friday, March 13, 2009

CAAF holds CA couldn't withdraw from PTA

It's late and I'm very tired tonight, so I'll grab Judge Erdmann's helpful synopsis of his opinion of the court in United States v. Dean, __ M.J. __, No. 08-0431/AR (C.A.A.F. March 12, 2009), and paste it here:

The parties entered into a pretrial agreement that did not include a misconduct provision authorized in Rule for Courts-Martial (R.C.M.) 705(c)(2)(D). On the eve of trial, the convening authority withdrew from the pretrial agreement because Dean would not agree to modify the stipulation of fact to include new acts of alleged misconduct. Dean moved to compel enforcement of the pretrial agreement. The military judge conducted a hearing and allowed the convening authority to withdraw. Dean subsequently entered pleas of not guilty to all charges and specifications and was convicted of several offenses by the military judge. His adjudged and approved sentence included a term of confinement that exceeded the limit set out in the pretrial agreement by sixteen months. We granted review to determine whether the military judge erred in permitting the convening authority to withdraw from the pretrial agreement. 67 M.J. 45 (C.A.A.F. 2008). We hold that under the facts of this case the convening authority did not have a right to withdraw under R.C.M. 705(d)(4)(B), and we therefore reverse the United States Army Court of Criminal Appeals.
Id., slip op. at 2.

Judge Baker dissented, disagreeing with the majority on two points. First, he thought that Dean had not begun performance under the PTA because his actions supposedly in reliance on the PTA actually preceded the CA entering the PTA. Second, he concluded that "even without an express subsequent misconduct provision, the plain terms of the agreement clearly permit subsequent and agreed upon modifications to the stipulation and permit withdrawal by either party when a proposed modification is not agreed upon." Because the defense wouldn't agree to a modification proposed by the government, Judge Baker concluded that the PTA's plain terms allowed the CA to withdraw.


New York in the DARK said...

CAAF, got it right on this one performance attaches once apellants agrees to sipulate.

Guys, anyone know the status of the USACIL cases? the ones with MILLS? there Rogue DNA tech?. Whats the posture of these cases anyway?. I have been doing some research I can't seem to find anything, seems all quiet since around 2006. I am trying to get up to speed, seems I'll have a dog in this fight but info has been hard to come by. My client's appeals has been over a while and we are just getting wind of these developments. Any info would be appreciative so an outsider could get a head start. I believe I'll be in need of co-counsel though.One the so called "mil justice WONKS"! any suggestions?, In any case from a civillian perspective this blog is certainly enlightening thanks to Dwight and the crew.

New York in the DARK said...

Any one have an idea on the stats on coram nobis or all writs in the CAAF arena. It seems the IAC case of Denedo I believe would shed some light on this?

Anonymous said...

NMCCA has some Mills cases and I believe they issued an order on oe of them. As far as Denedo goes the case is argued at SCOTUS on March 25th. I think you may see the end of ECN in the military.

I don't believe an agreement to stipulate binds anyone. A signed stipulation MAY but not necessarily so.

New York in the DARK said...

Its my position that once the defendant stipulates the facts of the charges and infact signs the document affirming such stipulation performance attaches thats all.

We all know its the stipulation of fact in essence the accused is now agreeing to what has been alleged by the preferred charges hence they now become factual as far as the court is concern. Hence, performance attaches at this point.

oh, anon do you happen to know the context of NMCCA's order on the Mills cases? and even better where I may research it? and was this order issued recently? am not sure where to start, still awaiting my request for copy of my client's record of trial. I guess am in for lesson on mil justice also awaiting info from NMCCA on my application to practice before its esteem body. Thanks in advance for the info guys.

Anonymous said...

The client signing a stipulation does not bind the CA. The CA must also sign the stip. If the PTA falls apart that stip can't be used against the accused. It is not the same as a civilian proffer. If the accused gets into providency and breaks it the judge will reject the plea. The government then can't use that stip to prove guilt. So the accused signing a stip doesn't bind the government.

New York in the Dark said...

noted anon, and I researched the subject alittle more seems you right on. This is going to be a challenge for me, but I believe I am going to seek some help so I dont proceed at my client's peril in this Mills/USACIL BUSINESS.i HOPE to hear from the service courts bar on my request to bne admitted into practice until then am off to do some reseacrh and see what I can didg up on mills and other government actors. Also and going in search of a mil justice practiitoner to get some advice.

Dew_Process said...

NY in the Dark - email Dwight - he can give you my email address. I'm in NY as well. I've also got a master list of all of the affected cases that Mills worked on.

Just because he worked on a case however, doesn't mean anything IF they had sufficient remaining sample left, in which case they retested the samples.

If you're client's no longer in custody or not on parole, you're probably in Denedo-land.

But, save yourself some grief and contact the military appellate defense counsel and see if they were advised of the "Mills" issue at any time during the appellate process. I recall seeing an ALL TJAGs memo to each of them listing the affected cases for each service.

New York in the DARK said...

Hey Dew, Thanks for the heads up I understand they are two cases leading the charge on this issue I believe US V luke and US V Carlson has anything substantial surfaced in these cases as yet?. Well will try to get your email. Talk to you soon and thanks for the info.