Our testimony will be cited on our web site … and we feel our presentation was the most comprehensive of all – - with regard to the UCMJ and its failures. Once again, the "victims" of UCMJ injustices and even with the prevailing case status—without lawyers assistance are being left out of the public domain. It makes us wonder … what is truly going one here.

In short, for a non-profit organization who traveled from Georgia to Washington to speak on behalf of many, as we did a decade ago… we are sad that we could not be cited by name and legal title as the others.

We await the findings and conclusions of this panel… and will comment further when that happens.

The V'ERPA-TEAM

But my larger point is that there's no law that makes an accused take sentencing relief in return for a waiver of appellate rights. I don't think it's overly harsh to say that if you don't want to live with the sentence you can negotiate, then either plead guilty without a deal or plead no guilty.

The idea is to reach a landing point where an accused says "look, if I can have THAT deal, I won't complain about any conviction or sentence within the range permitted by the PTA." I assume MJs would develop rather explicit instructions to be provided during the providence inquiry on that issue in terms of what the accused is giving up.

JO’C
One issue that your article did discuss —but I still think it’s of a concern—is how to deal with cases where even if the accused has pled guilty they do need some type of relief. I’m thinking of real ineffective assistance of counsel cases, coerced pleas, an accused wanting to withdraw his plea, Denando type cases, incorrect or unlawful sentences, problems with convening authority action, and other post-trial problems. (Let’s assume, for example, that Denando discovered he was now getting deported relatively soon after he pled guilty at his court-martial). Of course, the convening authority could correct the problem, or not approve the court-martial and order a rehearing.

In the civilian world, with standing courts, these types of collateral attacks on a guilty plea can be just brought back before the original court and relief can be sought, but since courts-martial are such fleeting things the only way to get relief is on direct appeal. So if waiver of appellant review becomes standard in all PTA’s where would the accused go for relief? Federal courts? I guess Coram Nobis writs are now good to go, but would the CCA have jurisdiction or the original court-martial?

This is certainly not meant to be a criticism of any kind, but just a follow up question.

(If this has already been discussed before on the Blog just post the link.)

Thanks for the kind words. Dwight posted my article when it first appeared in (I think) late 2007.

You asked about my view of "more comprehensive" changes, such as making all cases appealable, or not making any appeals automatic. I find it completely unworkable from a practical standpoint to require a notice of appeal. First, I assume the result would be that everyone notices an appeal — it would just be one more piece of paper that would be signed in the DC's office along with appellate rights statements, etc. The reason is that there is no cost to an accused for an appeal if he uses military counsel. So why wouldn't you noticve the appeal if it's free (and if the DC would risk an IAC claim if he didn't make you do it).

Second, because all court-martial appeals are geographically located in the greater D.C. area, it's impractical for trial counsel to stay with trhe case on appeal (and would probably be bad for accuseds anyway in terms of technical appellate competence). That means that the system more or less has to have new appellate counsel assigned who have had no prior contact with the accused. Given that geographic realities reduce attorney-client contact on appeal, I think any system that requires affirmative opt-in for an appeal is problematic.

As for making currently sub-jurisdictional issues subject to Article 66 review, that's Dwight's issue not mine. I see Dwight has recommended that mandatory Article 66 review (in the absence of a waiver) occur for "subjurisdictional" cases where there was an approved guilty finding for a spec to which the accused pleaded not guilty. If we allowed for PTAs with appellate review waivers, I'd take that modest subjurisdictional review because the overall package would be an improvement, but you won't see me lobbying for expanded review of "subjurisdictional" cases.

1) Completely agree with your point about guilty plea appeals diverting judicial resources from contested cases. I got detailed to a few kicked back contested cases that were literally YEARS old. They were relatively simple issues that got them reversed and I couldn’t believe it took so long for them to be decided. I almost felt bad for the poor trial counsel who had to track down the witnesses. One case was a UA case and they had to bring two doctors back from retirement and spend a lot money flying in almost all the witnesses. And in the end, the members gave us a great sentence because they were upset that the legal office took so long for a simple UA case. (Actual juror’s note to the MJ after the court).

2) Great point about with the UCMJ not permitting any no-contest pleas or Alfred pleas, there is very little moral justification for spending so much time on those cases. The accused can’t even plausibility claim that they were really innocent and just got railroaded into pleading.

3) Your point of allowing the accused to waive appellant review is a great first step, and sometimes you’ve got to move slowly with these things, but what’s your general position on more comprehensive changes. Like no automatic appeals and/or allowing all convicted accused the right to appeal. In many ways, in today’s world, it’s the conviction itself that is the stain on the accused’s record; a BCD is more just like firing and employee and giving a bad reference. All employers ask if you have a conviction, but it’s much less common today, with less of the population serving in the military, to ask if you got an honorable discharge.
I had several cases where I strongly suspect the MJ gave a subjurisdictional sentence with the sole purpose of avoiding direct appellant review. In one case, we argued for a BCD and the MJ just gave confinement. Afterward I asked why no BCD? and it’s burned in my memory what he said –perhaps a little too candidly— “There was no way I was going to let that case go up on appeal.” (There was no PTA and we had a pretrial punishment motion that he denied.)

4) On page 218 you use the phrase “bareback special” I’ve certainty used those types of PTA’s, but I’ve never heard of it phrased that way. The only time I’ve heard the term “bareback” is to describe something slightly more tawdry.