Interesting Op-Ed at the NYT At War blog, here, about whether SSGT Bales could providently plead to the murders in Afghanistan in light of his attorneys statements that he does not recall the murders.  Accessing a Benchbook right now would be difficult, but doesn’t the MJ Benchbook deal with this?

Updated:  CAAF actually addressed the issue last term, United States v. Jones, 69 M.J. 294 (2011), in dicta in the context of a case where the accused pled to certain facts he learned from counsel as part of a child pornography plea:

If an accused is personally convinced of his guilt based upon an assessment of the government’s evidence, his inability to recall the specific facts underlying his offense without assistance does not preclude his guilty plea from being provident. United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977).

So there you have it.

8 Responses to “NYT At War Blog Op-Ed: Afghan Killings and an Amnesia Defense”

  1. Peanut Gallery says:

    Makes sense.  I guess the only potential issue would be the trustworthiness of the government’s evidence.  Or, what if there is little or no evidence?  Or, as I speculate might be the case here, the evidence is primarily the testimony of victims’ family members? 

    At the end of the day, if he’s convinced he did it, and wants to plead guilty to it, who are we to stop him as long as he gets to see the evidence?

  2. Zachary Spilman says:

    It’s not uncommon for an accused to plead to something he doesn’t remember because he was drunk at the time of the offense, but he has seen the government’s evidence and believes and admits that he did the things alleged therein…

  3. Babu says:

    I was TC for a plea several years ago where the accused claimed complete amnesia, and had spent the previous several months at a mental hospital receiving “treatment.”  (The sudden onset of amnesia occured at the Waffle House in Jacksonville, NC shortly after he was arraigned–he was found there incoherent with no apparent knowledge of who he was)  During providency he maintained that he still had amnesia, but was willing to accept that he had done what he was charged with based on the investigation documents.  Pleas were accepted by the MJ.  I couldn’t find an NMCCA opinion so it must have been a summary disposition.  I was able to find that CAAF denied a petition for grant of review.  So amnesia shouldn’t be a bar for SSgt Bales to plead.

  4. PT says:

    No problem with the fact that murder requires specific intent?

  5. Christopher Mathews says:

    @ PT —

    None at all.  Just as an accused can admit during his plea inquiry to all the other elements of an offense based on a review of the evidence despite his professed lack of recollection, he can admit to his intent on the same basis. 

  6. Dwight Sullivan says:

    Of course, an accused can’t plead guilty to a charge referred capitally.

  7. Zachary Spilman says:

    While he can’t plead to a capital offense, he can agree to plead to non-capital charges, with an Article 63 / R.C.M. 810 waiver to permit a capital referral in the event his non-capital pleas are set-aside on appeal. See, United States v. Thomas, 60 M.J. 521 (N.M. Ct. Crim. App., 2004). 

    As for providence, there’s undoubtedly enough circumstantial evidence to support a plea.

  8. David Nelson says:

    It is true that a defendant need not remember all the specific facts of a crime in order to plead guilty and have a military judge accept that plea.  The judge should be guided by Rule for Courts-Martial 910(e).  The discussion under that rule states:  ”  The accused need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea.  Nevertheless the accused must be convinced of, and be able to describe all the facts necessary to establish guilt.”

    In the recent case United States v. Jones, 69 M.J. 294 (2011), the court addresses a memory loss by the defendant:  “As the providence inquiry progressed, Appellant had difficulty providing specific details regarding the child pornography taken from his computer.  However, Appellant never denied that he in fact sought, received, and viewed child pornography from sites on the Internet.”  The majority of the court held that the guilty plea was provident.  Clearly, the defendant recalled a sufficient amount of the surrounding circumstances of the crime to allow a provident guilty plea.  He did not have a total memory loss as to all details of the crime. 

    In the April 2008 issue of The Army Lawyer, Military Judge Colonel John Siemietkowski, USAR, discusses provident guilty pleas on pages 45 and 46.  He writes:  “Reassure the client that he ‘need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea.’  Rather, he may ‘be able to adequately describe the offense based on witness statements or similar sources which he believes to be true.’  For example, the client may remember that he smoked majijuana and recognize the validity of the lab report without necessarily having observed the lab’s testing of his urine sample.”  But Colonel Siemietkowski footnotes the above analysis with the following caveat in footnote 22:  “But see United States v. Wiles, 30 M.J. 1097, 1100-01 (N.M.C.M.R. 1989) (setting aside guilty plea where accused convinced by witness statements that he smoked marijuana, but had no memory of smoking it).”

    The main thrust of the essay “Afghan Killings and an Amnesia Defense” is to point out the military plea bargain rules are stricter than their civilian counterpart rules, and that in order to have a military judge accept a guilty plea, Staff Sgt. Bales may have to remember more of the episode than his lawyer says he recalls right now.