Here’s a piece from about the Cox Commission.  One of the many potential recommendations it highlights is adopting the JO’Cian waiver of appellate review as a bargained-for PTA term proposal.

21 Responses to “Another Cox Commission preview”

  1. Cossio says:

    Again, getting rid of BCDs would negate appellate review (other than TJAG). This proposal will turn ugly if adopted.

  2. Oissoc says:

    But why would that be a bad thing?

  3. Anonymous says:

    If they are going to do this, there still needs to be some sort of review outside of the appellate arena.

    What if you get stuck with a trifecta of bad defense counsel, trial counsel and judge?

    How is the defendant supposed to be able to knowingly bargain away his appellate rights?

    This would probably be fine in some cases, but in some cases, it is not. A solution in search of a non-existent problem.

  4. Anonymous says:

    Regarding Cos Y YO saying prosecutor’s bully people into PTA’s, he must know some weak defense counsel. Most DC are disappointed with a PTA since it deprives them of the opportunity to gun fight – but they recognize it is sometimes in their client’s best interest.

  5. Gun control is hitting your target says:

    Here’s the issue with waiving appellate review in the military as part of a PTA: how does a servicemember raise IAC claims?

  6. John O'Connor says:

    He doesn’t raise IAC. Basically, he decides that for the sentencing and other relief offered, he’s willing to give up any claims of IAC.

  7. Gun control is hitting your target says:

    Hypo: Young Marine, scared out of his wits, gets hit with a rape charge (or whatever serious offense)…repeatedly tells his attorney he’s innocent…attorney tells him he’s got no chance of winning and it’s ok for him to lie about the crime to get this great deal (including waiver of appellate review)…you think that’s the right result?

  8. John O'Connor says:

    Do you really think that this issue would get raised on appeal now? That would require the accused lying to the MJ, but then having an epiphany and telling the “truth” to an appellate lawyer in Washington who he has never met.

    What happens to the civilian accused in that situation? And why do we let accuseds waive appellate review now (so long as they get nothing in return) if they muast always be protected in their right to vindicate this highly, highly fanciful hypo on appeal. I mean, what if the evil DC under the current system also tells the accused (because the DC doesn’t want to get exposed) that he needs to sign a waiver of appellate rights? We let that happen today, without any change to the UCMJ.

    I suppose habeas remains available in such a situation, but I’m not sure how much luck the civilian or the military accused would have with that route.

  9. Ricky says:

    In civilian federal criminal practice, doesn’t the typical PTA, which provides for waiver of appeal and collateral attack rights, have an EXCEPTION for IAC claims?

    Oh, and, John, there’s no epiphany in telling your appellate lawyer the truth, if that’s what you told your trial lawyer all along, but he convinced you to lie to the judge.

  10. John O'Connor says:

    I guess I’m not overly worried about creating (or maintaining) an entire appellate hierarchy to protect someone who would perjure themselves at trial and then tell a faceless appellate lawyer that they committed perjury.

  11. Hang em High says:

    Delay CA’s action, give them an OTH after they did their stint in the pokey, then disapprove the BCD (and confinement in excess of 364 days).

  12. Jimmy Poon says:

    Well, the hypo about the lying Marine is not good. But what about young, crappy lawyers in general who can screw up in any number of ways. For example, an indifferent defense attorney rejects an offer w/o discussing with his client and the case proceeds. Later, the gov’t offers again, though this time not as good. Both offers included waivers of appellate rights but the first capped confinement at two years and the second capped confinement at four years. The judge hands down a five year sentence. I wonder if John O’Connor is concerned about a system that would countenance this? And, as a previous poster pointed out, I wonder if John realizes that federal civilian practice normally preserves IAC claims (along with claims of prosecutorial misconduct).

  13. IAC says:

    Denado…Denado…..The Writ of C. N.

  14. John O'Connor says:

    Those are all waivable issues in the civilian system. You’ll have to show me authority for the proposition “that federal civilian pactice normally preserves IAC claims,” because I don’t think that’s true. That issue might be preserved through a heabeas petition, but the same would be true under my proposal (with all the hurdles faced in habeas for civilian and military defendants).

    In any event, asking if I am concerned about whether a system would countenance your parade of horribles sort of misses the point, because one already does — the federal courts. And so does the court-martial system, so long as the accused gets nothing for his appellate waiver. My proposal essentially wipes out the indifferent appellant (and directs resources toward the contested court-martial, which I think is good). You might call that heartless, but no more so than those who constructed the federal criminal system.

    What about the young, indifferent accused who doesn’t give a hoot about an appeal because he was a UA/dive who is happy to move on with his life. Would you “countenance” a system that makes multiple actors along the way review that ROT and brief it up because the accused was prevented from bargaining away something on which he placed zero value? Probably, but it’s always easier to countenance things when someone else bears its burdens.

    It’s easy to create hypos where it seems the system does somebody wrong. On balance, the system I propose would be a better system.

    My thoughts on this issue are fully “in the arena” so to speak, under my own signature. If you have a logical counter-position, I’ll look out for your article.

  15. Phil Cave says:

    Clients lie at trial because there is no Alford plea in the military. Sorry, but that’s a dirty little fact about some PTA situations in the military. The DC has got the person so scared they are going to jail for life, etc.

    It’s not the TC bullying, it’s the SJA. It’s the SJA who won’t deal on the charges as well as sentence — “He pleads to rape and spitting on the side-walk or no deal.”

    What trial defense counsel can effectively assess the appellate value of a case? Do they have the knowledge or the experience to do that? I’m in favor of narrowing the class of cases getting automatic review, but I’m concerned about allowing waiver of an appeal in a PTA in the current environment.

    What if the client waives appeal, trial proceeds, and the prosecution calls five witnesses who all testify that in their opinion the appellant should get a DD, the defense objects, and the MJ says no problem I’ll consider the opinions? Isn’t that the bi-fecta error that will not draw any light if the appeal is waived. So will that not encourage TC’s to take the we’ll throw it in he can’t appeal approach to cases?

    I’m more in favor of a situation where a person has to petition for review, state the issues, and state why the petition should be granted in guilty plea (to all charges) cases. That may cut down on appellate litigation. Save mandatory review for cases where the accused pleads not guilty, or to . . . . but waiver of appellate review is not a solution it’s an imposition.

  16. Anonymous says:

    The problem is, military courts have a much more extensive providency. The military accused puts on more damaging evidence against himself then typically a prosecutor in civilian court does against an accused there.

    I guess I’m not sure what the incentive is. There are some drags at the criminal justice shop from having to prepare a post-trial record. And I suppose if you are waiving appellate review, you don’t need a recorded trial at all, right?

    If that’s a stupid response, and we do need a record, then what does waiving appellate review do for either the judge or the trial counsel? It might make appellate practice easier. Much fewer issues.

    It just seems like a solution in search of a non-existent problem.

  17. Criminal Law and Personnel Injury says:

    I don’t agree with Mr. Cave, but I’m just a humble gov’t employee. The gov’t never has all the evidence….Either way, when I was military defense counsel ( I hope my clients never felt like they had to plead guilty when they were innocent) I did my best to advise my client to avoid perjury: “When the judge asks you how you knew it was cocaine, a ‘better’ answer than you’ve done it before is that you’ve seen cocaine on TV”. Both answers are truthful, but the second one avoids incriminating you further.

  18. CB Hooper says:

    I’ve seen several federal civilian PTA’s in my district – they all contain waivers of direct appeal and 2255 rights, with the exception of IAC and prosecutorial misconduct claims.

  19. Anonymous says:

    So the next thought then is, if IAC is excepted out, then appellate attorneys still have to read the entire record of trial.

    So what’s the point? No time is saved.

  20. Anonymous says:

    It seems to me that some of the more minor BCD Special cases could be done at a Summary C-M where you are still likely to get 30 days in confinement, loss of rank, you can follow it with a Chapter/OTH (e.g. “supercharged 14”).

    And in less than two months you can have the guy punished and out of the unit. A real message to other folks, without the difficulty of having a court-martial where at the end of the day, all you get out of the guy is a few more months in prison and maybe some pay (of course you had to pay him for at least two months you wouldn’t have had to before) although most CAs will simply give the pay to the dependents.

    At the end of the day, if folks want to lighten the load, stop doing so many C-Ms and stop treating Summary C-Ms like they don’t exist.

  21. Nostradamus says:

    JAGs are our own worst enemy, when it comes to Military Justice. I predict that in 2 decades there will be no GCMs and SPCMs. TDC with divided allegiances, JAG and TC making court-martials more onerous and painful to conduct for the CA, and coverage of all the most serious crimes by the Fed, States, and/or MEJA render MilJUS JAGs obsolete. The rest go to NJP. Nice career track.

    BTW, Cossio ain’t half wrong on this thread.