CAAF today granted review of this interesting issue from an Army case:

WHETHER THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED AND UNENFORCEABLE PROVISION REQUIRING APPELLANT TO “OFFER TO REQUEST A BAD[-]CONDUCT DISCHARGE DURING THE SENTENCING PHASE” THEREBY VIOLATING RULE FOR COURTS-MARTIAL 705(c)(1)(B) AND PUBLIC POLICY.

United States v. Soto, __ M.J. ___, No. 10-0397/AR (C.A.A.F. July 13, 2010).  ACCA affirmed in a two-sentence per curiam opinion dated 17 February 2010, accompanied by a “Notice of Court-Martial Order Correction.”  (ACCA’s rulings don’t appear to be available online, so I’ve posted them here.)

21 Responses to “CAAF grant”

  1. Anonymous says:

    Did appellant actually receive the bad-conduct discharge?

  2. FTB says:

    Does anyone have any background on this? I’m at a loss to guess why the Government would demand such a provision in a PTA given the potential for a challenge like the one they’ve gotten themselves into.

  3. soonergrunt says:

    So the appellant is claiming that part of his pre-trial agreement is that he would offer to request a BCD?
    Did he actually follow through and make the offer or did he actually request the BCD?
    Why is that provision unenforceable, and how would it be illegal?
    I mean to ask, don’t people plead to lesser offenses all the time in order to lessen the potential sentence? Wouldn’t one want to limit the possiblity of a Dishonorable Discharge as much as possible? So what would be the problem?

  4. Anonymous says:

    Same problem you would have if the quantum limited confinement to five years but the PTA required appellant to request two years confinement.

  5. RY says:

    Interestingly, isn’t this similar to the question about waiving appellate rights? I.e., if it works to the benefit of the Accused to get what he perceives to be a better deal, is it really invalid, against public policy or unenforceable? Is it really more of a concern about slippery slopes? I don’t like the provision, but it seems to me the same arguments for/against waiving appellate rights apply to this issue as well.

  6. Anon says:

    Why Govt why? Who that ever touched this case could not see this coming? Amazing. Good job setting the case up for success at the appellate level and letting it drag on.

  7. John O'Connor says:

    If I were to guess, and we have to guess considering the highly unilluminating ACCA “opinion,” I woulod guess the language in the PTA was a somewhat inartful way of saying that this provision originated with the accused.

    And you can see how this happens. The DC comes up to the TC and says he needs a break on confinement. The DC says, “Look, the guy’s going to be a BCD striker, so the command will get rid of him, so let’s cut him a break on confinement.”

    The problem is that, legality aside, that’s really not something that ought to be put in a PTA. Rather, it’s best not to have that as an explicit term, but leave it as a non-binding statement of the accused’s intent, one that the TC nevertheless might take into account in deciding what kind of PTA to support. If the accused goes back on what his counsel said he’s going to do, the TC files it away that you can’t really trust this DC when it comes to any statement that’s not legally binding.

    Of course, the best way to encourage the accused to ask for a BCD is to make any cap on confinement contingent on his receipt of a BCD. I wonder if the PTA here had such a provision.

  8. Anonymous says:

    Concur. Our system (and participants in it) can be so amazingly paternalistic. Do we really need to protect sane adults from the consequences of their own intentional decisions simply because we wouldn’t have made the same choice for ourselves? While it is certainly an unusual PTA term, CAAF should uphold it; there is no public policy problem with it.

  9. Anonymous says:

    our system is paternalistic because we don’t have a dedicated criminal law bar but instead have folks who do trial counsel for a year or two, or maybe have been defense counsel for slightly longer and then never do criminal law again.

    We have supervisors who don’t have much more experience. So in such a situation, paternalism is necessary.

  10. Southern Defense Counsel says:

    John,

    I’m have a really hard time figuring out how the proposal you gave isn’t a sub rosa agreement. Care to shed some light on that?

  11. John O'Connor says:

    Yes, I’m happy to shed some light on that. There’s no binding agreement so, by definition, no sub rosa agreement.

    Lots of times DCs would tell me what their client intended to do or wanted to get out of a court-martial. I might factor that into my analysis because I believed the DC was telling me the truth. But those statements were never part of the deal and I never believed that stuff was a binding agreement to do anything. The DC very well may have made the statements in the hopes of influencing the PTA, but there was no agreement, and I could never condition the deal on what the DC told me but didn’t put in the PTA.

    If it didn’t turn out, I didn’t have a claim for breach of the PTA. I just knew that I couldn’t really believe anything the DC told me.

    The same thing would happen in the other direction. I would cut deals where we would drop charges without prejudice (I tried not to drop anything with prejudice because of the potential implications on remand). I would tell the DC we had no intention to bring the dismissed charges unless the cases came back on appeal, but that I wasn’t binding the U.S. to anything. While what I said was true, and the DC may have considered it, I certainly wasn’t binding the government not to pursue the charges. However, if I even once made such a non-binding statement and then we brought the dismissed charges in a second court-martial, I would have lost credibility with the DCs and never been able to cut such a deal again.

  12. Anonymous says:

    Anytime a summary disposition gets granted at CAAF, the CCA judges who signed off on it should be hazed by the Chief Judge with various forms of incentive physical training.

  13. John O'Connor says:

    LOL. It’s funny because it’s true.

  14. Also, too, as well ... says:

    These are lay-people’s lives/futures we’re talking about. Often young, misguided kids. In some cases, military leadership failed these folks. They often don’t appreciate what’s being sold to them. To many TC/DC, “those people” are just a case that they need to complete to get through the current assignment and on their way to the next assignment. So, yes, paternalism is sometimes necessary. In a sense, arent’t the appellate courts somewhat paternalistic?

  15. RY says:

    absolutely!

  16. Anon says:

    I believe that is the practice in the Navy Court. After all, you see those judges in the gym several hours every day!

  17. Article16 says:

    lame…if you can’t litigate over the propriety of a BCD, the whole thing just wouldn’t be fun anymore.

  18. Anonymous says:

    There’s always the thrill of SJAR errors.

  19. Anonymous says:

    This reeks of “empty ritual” at sentencing. I’m pretty sure Courts are not in favor of that.

  20. hah says:

    An advanced use of the summary disposition: summary affirm and hope no one notices!!! Bravo.

  21. Article16 says:

    yeah, but TDCs don’t really get to partake in that thrill, so much as pass it along…and at least a few TCs don’t know what an SJAR is, much less know how they could be wrong.

    We’re talking junior captain fun here!