The Coast Guard Court’s web site has a new published opinion. United States v. Hunter, __ M.J. ___, CGCMS 24298 (C.G. Ct. Crim. App. 23 Jan. 2007), is a divided opinion with Chief Judge Baum dissenting in part. All three judges agreed that the military judge erred by failing to inquire into a portion of the pretrial agreement dealing with the consequences that the CA could impose if Hunter engaged in post-trial misconduct, which of course he did.
In footnote 2, the majority spanks the military judge for failing to inquire into all of the PTA’s terms. But the majority also decides that the error didn’t prejudice Hunter. As I read the opinion, the majority appears to simply guess that Hunter understood the term. Chief Judge Baum dissented from this portion of the majority opinion, declining the find that the military judge’s error was harmless — especially since, as the result of post-trial misconduct, Hunter was ultimately required to serve two extra months that would have otherwise been suspended. Rather than joining in the majority’s “speculation,” Chief Judge Baum urged that “where an unexplained provision of a pretrial agreement has actually affected an accused, prejudice should be presumed in the absence of contrary evidence.” Slip op. at 9.
The Coast Guard Court then goes on a rescue mission to save the military judge’s inquiry into the providence of Hunter’s plea to dishonorably failing to pay a just debt. The court concedes that “[i]t is true that details are scarce and the providence inquiry is formulaic and not especially convincing.” Slip op. at 7. Yet the court concludes that “the factual details elicited in this case, though minimal, are sufficient to fulfill the requirement, in our view.” Id. The court then warns, “Military judges who take comfort in this result do so at their peril.” Id. Apparently there is no similar danger of an appellant being comforted by the court.