I know some of you don’t routinely read the comments; this post is for you. In a follow up to the post on AFCCA’s Rose opinion, below, Sir Cloudesley (as usual) provided a useful perspective, which I cut and am now pasting here:

The sample pretrial agreement in the Navy JAG Manual is two pages long. PTAs in the real world are already 6-10 pages.

They are about to get longer. Any SJA or trial counsel that fails to foreclose these appellate issues with a well-crafted PTA is not doing his job.

Every PTA should have boilerplate paragraphs putting the accused on notice of collateral consequences, a complete laundry list, with the accused acknowledging that the law can change at any time. The accused should be required to affirmatively acknowledge that he has been put on notice of all possible collateral consequences, known and unknown, and that the accused bears the risk of being subject to an undiscovered or unperceived collateral consequence, and also places upon the accused the affirmative duty to research all possible collateral consequences, and require him to affirmatively state his is satisfied with his attorney’s advice with regard to collateral consequences.

SJAs should not rely upon the diligence of defense counsel. If a guilty plea gets flipped, its the gov’t that deals with the consequences, not the defense atty.

I can think of several collateral consequences that the PTA should put the accused on notice of, regardless: deportation, voting, weapons possession, sex offender registration, limitations on foreign travel (either through loss or inability to get a passport or through prohibitions by the foreign country), property forfeiture, inability to get a student loan, loss of military and veteran’s benefits, inability to get a professional license (depending on the state licensing scheme), inability to hold public office, mandatory DNA testing, impairment of ability to get employment (public and private), inability to qualify to adopt a child, loss of child custody in a divorce, termination of parental rights, inability to qualify for public housing, loss of drivers license. I’m sure others could think of more categories.

If not in the PTA, then SJA’s and trial counsel should require that the laundry list of collateral consequences be listed on a separate document, signed by the accused and counsel, and admitted into evidence at the guilty plea hearing in order to insulate against appellate attacks on the guilty plea based upon lack of knowledge of guilty pleas or “affirmative misrepresentation.” Or demand that the military judge address the issue on the record. Haven’t looked at the Benchbook lately; has a colloquy regarding collateral consequences been inserted into the Benchbook?

(BTW, and I kid you not, Sir Cloudesley has his own Facebook page; I know, because I’m a “Facebook friend” of the dearly departed admiral’s.)

The Court-Martial Trial Practice blog also has a post about Rose‘s implications here.

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