Wednesday, April 16, 2008

Clarifying the specific intent required for aiding and abetting an indecent assault

In United States v. Mitchell, __ M.J. ___, No. 07-0225/MC (C.A.A.F. Apr. 16, 2008), CAAF answers that age-old question of whether to be guilty of aiding an abetting an indecent assault, the aider and abetter must act to gratify his or her own sexual desires or whether it is sufficient that the abettee acts with such intent. The latter, rules CAAF. Id., slip op. at 9-10.

Mitchell also addresses whether the providence inquiry was sufficient for distribution of marijuana where the accused indicated that he thought the substance was marijuana at the time he distributed it, but since had been told it wasn't. The military judge was obligated to reopen the providence inquiry to explore the inconsistency, ruled CAAF. Id., slip op. at 13. To remedy the military judge's failure to reopen, CAAF knocked the finding down to attempted distribution of marijuana and affirmed the original sentence. Id., slip op. at 13-14.


John O'Connor said...

Apart from my "where was the trial counsel" comment on this case below, let me add two other thoughts:

1. This is exactly the type of case where a waiver of appellate review would have been a useful tool. The accused did not want to contest whether his offense was an actual distribution or an attempt and, really, as CAFF noted it wasn't going to make a bit of difference in terms of sentence. This accused has no moral standing to appeal in my view, having been the advocate of his own guilt at trial.

2. This case also points out a reason why it would, in my view, be a bad idea to adopt Gene's ideas about having trial defense counsel take the cases on appeal. If the DC didn't appreciate that the accused's story was arguably consistent with an attempt rather than a completed offense, why would one expect the same counsel to apprehend this for appeal. And isn't the accused's situation much, much less sympathetic when the very counsel who urged a guilty plea and advocated that the accused was guilty at trial is the same counsel arguing the opposite on appeal? I would think having TDC continue on appeal would lead to a lot of uncomfortable (and probably harmful for the accused) questions about why "you" didn't do this or that to make he accused's case at trial. This is all in addition to my oft-stated view that counsel at trial are often more concerned with getting through the trial process with significantly less focus on the appellate consequences of their actions.

Dwight Sullivan said...

This case helps demonstrate the importance of the providence inquiry and appellate review of providence inquiries.

We don't allow Alford pleas in the military -- and rightfully so, I believe. Allowing such pleas would open the military justice system up to enormous problems. It is much better for the system and its reputation that a servicemember can be convicted based on a guilty plea only if the servicemember explains in his or her own words exactly why he or she is guilty.

But in addition to the reputational interest, this system also furthers the justice system's truthfinding function, which should be paramount to almost every other interest. (Obviously there are some interests -- like those protected by privileges -- that trump the truthfinding function. And, unfortunately, there are exclusionary rules that hamper the introduction of trustworthy evidence to further other goals. As I have indicated before, I would eliminated those exclusionary rules that are not designed to exclude untrustworthy evidence, like coerced confessions -- as opposed to confessions that are merely unsupported by a sufficient rights waiver. But that's for another blog.)

Let's change the facts in this case just a bit. Let's say that after the distribution, the "marijuana" was tested by a Navy Drug Lab and determined to be oregano with no trace of a controlled substance. And let's say that the accused said that on the record, but persisted with his guilty plea based on the theory that he THOUGHT it was marijuana at the time of the distribution. And let's say that the military judge just plowed right through and convicted him of distribution rather than attempted distribution.

Wouldn't it be a good thing for the appellate courts to promote accuracy by ruling that the accused was guilty of attempted distribution, not actual distribution, despite his plea? So, in answer to that great law review article title, perhaps we don't Care too much. See Terry L. Elling, Guilty Plea Inquiries: Do We Care Too Much?, 134 Mil. L. Rev. 195 (1991).

And I see nothing at all immoral with Mitchell's appellate defense counsel pointing out that, hey, he never admitted that it was actually marijuana and that under the rules of our system as drafted, he couldn't be found guilty of the ACTUAL commission of the offense, but only the attempted commission of the offense. Indeed, it would seem strange to me if promoting the truthseeking function were viewed as immoral.

But all that said, I concur that Mitchell should have had the right to deal away his appellate rights, since that would have given him a commodity to sell that the CA, SJA, and TC were interested in buying. And his life probably won't be any different having his permanent records reflect a federal conviction for attempted distribution rather than actual distribution.

John O'Connor said...


You are misunderstanding my statement that the accused has no moral standing to appeal here. I assuredly am not saying that it is immoral for his appellate defense counsel to raise this issue. What I am saying is that there is no moral reason why the rules must permit an accused to reverse course on appeal and refute everything that he advocated at trial. So, for instance, like you I can think of no good reason why an accused should not be allowed to waive his right to appellate review.

You say that not having a providence inquiry would create enormous problems for the military justice system. Those problems haven't manifested themselves in the federal syatem, or at least they are not viewed as so substantial that a providence inquiry is required. Too be clear, I am not advocating that the requirement for a providence inquiry be scrapped, but I think your chicken little "the sky is falling" reaction to anything undermining the providence inquiry is probably overstated.

Dwight Sullivan said...


No one thinks that superiors are coercing Article III defendants to plead guilty to stuff they really didn't do.

But some people do think that the military justice system is a command controlled apparatus that can't be trusted to deal with enlisted servicemembers fairly. And some think this because at various points in its history, the U.S. military justice system was a command controlled apparatus that couldn't be trusted to deal with enlisted servicemembers fairly.

Now, that is no longer an apt description of the system and hasn't been for some time. But a good deal of cynicism about the system persists. And I have certainly seen a good number of the letters from servicemembers to their Members of Congress alleging unfairness in the military justice system's handling of their cases and the resulting CONGRINTS. And I've seen responses to those CONGRINTS quoting the accused from the ROT explaining how he really did commit the offenses to which he pled guilty, with the insinuated (but certainly not overtly articulated) question, "Do you think it's more likely he was lying when he admitted the misconduct or is lying now when he denies the misconduct?"

The providence inquiry and prohibition against Alford pleas are good for the military justice system not only because they support the truth-seeking function (though that would probably be enough for me), but also because they are well-designed to overcome military justice-specific cynicism that the Article III courts simply don't face.