Monday, June 11, 2007

ACCA can't handle the truth!

It's been a slow month for the CCAs. Neither the Air Force Court nor the Navy-Marine Corps Court has updated its web cite's opinion page for a month. Navy Knowledge Online includes what it says is a published NMCCA opinion, United States v. Dearmond, No. NMCCA 200501343 (N-M. Ct. Crim. App. May 31, 2007), but upon opening it, I see that the opinion says, "AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT." Id., slip op. at 1. (I also checked to see if either of the other NMCCA opinions dated 31 May was published -- nope.)

But to break the monotony, ACCA issued an extremely troubling opinion today. Here is the essence of United States v. Stokes, __ M.J. ___, No. ARMY 20041348 (A. Ct. Crim. App. June 11, 2007). Stokes pled guilty to larceny of military property under the mistaken belief that the military would have to cover the $1,600 he racked up on his government credit card. On appeal, his crackerjack defense appellate counsel realized that was false and challenged the providence of the plea. GAD then CONCEDED ERROR. I'm not sure how often that happens, but I'm guessing just slightly more frequently than a filly wins the Belmont Stakes. Too bad, ACCA rules. Sure it was factually incorrect when Sergeant Stokes said the government would be out the money, but he said it, and that's all we needed to hear. (Not an exact quote.) Turning a blind eye to the truth "promotes judicial economy and brings finality to the appellate process. It also ensures that, except for those rare circumstances when truly new evidence comes to light, an appellant is not permitted to use the benefit of hindsight to undermine tactical decisions reasonably made at trial." Stokes, slip op. at 9. Well, it also promotes disrespect for the law, treating a court-martial finding like the result of a parlor game rather than a solemn pronouncement that should be, if possible, factually accurate.

It's a good thing for John Mark Karr that he wasn't in the Army. If he has shown up at a court-martial and admitted to killing JonBenet Ramsey, ACCA would have averted its gaze from any subsequent evidence proving that he wasn't guilty. Oh, and sorry, no petition for new trial based on new evidence -- you can't file one of those if you pled guilty. But don't worry, PVT Karr, ACCA might still let you use collateral evidence to raise an IAC claim. But what if the counsel hadn't been ineffective for believing Karr's story and had cut what would have been an advantageous deal for someone who actually had murdered a 6-year-old? Please enjoy your stay at the USDB, PVT Karr, you'll be here a while.

I have previously noted my very prosecution-friendly view that the Fourth Amendment exclusionary rule should be abandoned, in large part because it interferes with a trial's truth-seeking function. And here we have a case where the result was clearly factually incorrect, ACCA acknowledges that it was factually incorrect, and it says it doesn't care.

I'll bet CAAF cares. This will be an interesting petition process, since Army GAD has already formally sided with DAD on the issue. Will GAD support the petition for grant of review? Will DAD file a consent motion to summarily reverse?

Let's have another contest: write the issue presented for the Stokes supplement. A copy of Judge Baker's new book to the winner (or a book of equal value if the winner already has Judge Baker's book or if this winner IS Judge Baker). Contest ends at 1700 Eastern Daylight Time, Saturday, 16 June. I unilaterally pick the winner applying arbitrary and capricious criteria of my choosing. Bonne chance.


egn said...

A few random thoughts:

The scenario in Stokes reminds me of a pretty awful movie named "Double Jeopardy," wherein the protagonist is tried and convicted for the murder of her husband, only to discover after she's paroled that he never actually died. She embarks on an investigation into his "death," and while she can't/doesn't get her conviction overturned (even though she had not pled guilty), she ends up (re-)killing her husband in the end because she can't be tried and convicted twice for the same crime. Brilliant plotting.

So following the premise of the movie, if Stokes doesn't prevail on his appeal, I guess he can always try and figure out a way to steal $1600 of military property that he was already convicted of stealing.

Also, if civilian criminal courts were to follow the logic presented in Stokes, I surmise that the Innocence Project would have a much larger uphill battle in a good number of its cases.

Finally, my stab at winning Judge Baker's new book:

Appellant pleaded guilty to larceny of military property based on the erroneous belief that the U.S. Government would have to cover the unauthorized government credit card purchases that Appellant failed to pay. Where the uncontroverted facts presented on appeal reveal that the U.S. government never had such an obligation with the credit card company, did the Army Court of Criminal Appeals err in declining to consider that evidence and nonetheless affirming Appellant's plea of guilty to larceny of military property?

(I realize I may have just killed my chances at winning by using "pleaded" instead of "pled" in the issue statement.)

Anonymous said...

If the theft charge was the only charge, the QP should be:
Can the eternally stupid succeed on appeal in undoing what they screwed up in the trial court on an issue other than IAC? (For those that are Alfred plea in the military fans you should not be appalled at this case. But it should get bounced on IAC.)

If larceny was not the only spec:
Chpilf CAAF determine the rights of the parties to a contract when an operative fact underlying the bargain is not true? If you look at this from a contract perspective . . . Probably gets reversed.

Phil Cave said...

Whether a Guilty Plea is Provident and May be Accepted, When the Offense to Which the Accused is Pleading Guilty is a Legal Impossibility.

And don't be raising any ALI (Am. Law Inst.) MPC defense. 'member that one, can you be convicted of killing a dead person (I think)?

Dwight Sullivan said...

EGN, have no fear of being bounced from the competition due to your use of "pleaded." You are in good company. The Guru himself, Bryan Garner, recommends "pleaded." Consider, for example, this analysis, "A century of pleas to use the correct past tense (pleaded) has had little effect; pled is acceptable in American legal usage. Still, pleaded is dominant and best used in legal writing. The variant past-tense plead is objectionable because it looks like the present-tense verb (like read or lead)." Bryan A. Garner, The Redbook: A Manual on Legal Style at 228 (2002). See also Bryan A. Garner, A Dictionary of Moden Legal Usage 667 (2d ed. 1995).

Also consider this, from the Guru's "The Elements of Legal Style," (of which I have an autographed copy, thanks to the Kabul Klipper): "The better past-tense and past-participial form is pleaded, not pled." Bryan A. Garner, The Elements of Legal Style 133 (2d ed. 2002).

But this is one of very few instances -- in fact, it may be the only instance -- in which I part company with the Guru, choosing to follow instead the guidance of, well, Bryan Garner. Consider this from the Guru's Redbook at 157: "Use the simplest, most straightforward words that you can. . . . Using simple words and phrases instead of stuffy ones results in a more natural style." On the same page, he also tells us, "[T]he trend today is toward the use of plain language and away from the stuffiness and jargon-laced prose that characterized much legal writing in the past. It's a welcome trend, and one that writing coaches universally encourage."

Now to me, "pleaded" sounds stuffy. I would never SAY that word orally; I would invariably say "pled." So "pled" is more natural.

Finally, consider this from the Guru's Dictionary of Moden Legal Usage: "In Great Britain only the form pleaded is used and pled is considered an Americanism." Garner at 667 (quoting Bergen Evans & Cornelia Evans, A Dictionary of Contemporary American Usage 372 (1957)).

That's a good enough reason to use "pled" right there. Please sign me up for Americanisms rather the emulation of a legal system where lawyers walk around in wigs with pigtails.

As Clive Anderson has written, "Distinctive legal horsehair wigs were not adopted by judges and barristers originally as badges of office or as a professional uniform. They were worn in the fashion of gentlemen of the 17th and 18th centuries. But the tide of fashion moved on, leaving the last remnants of the wave of wigs stranded on the heads of the Bench and the temples of the Temple. By the time it filtered through to the courtroom that no one else was walking around looking like Desert Orchid with a full perm, the custom had been hallowed by long practice and no one could remember a precedent for a lawyer pleading a case bare-headed. And so, just in case, bare-headed pleaders were ruled out of court." Clive Anderson, Plead plead me, Punch, 17 July 1991, at 82. Mr. Anderson also assures us that wigs "make a charming link with the past and keep countless white-haired old horses in profitable employment." Id.

So I'd like a better reason for using "pleaded" than that's what some bewigged, gowned barrister at the Old Bailey would say. To paraphrase Lee Greenwood, I'm proud to use an Americanism.