In a lengthy published opinion issued last month in United States v. Cron, No. 38138, 73 M.J. 718 (A.F.Ct.Crim.App. Jun. 27, 2014) (link to slip op.), the Air Force CCA affirms the adjudged and approved sentence of life without the possibility of parole for the appellant’s convictions, entered in accordance with his pleas of guilty, of conspiracy to commit premeditated murder, premeditated murder, and wrongfully impeding an investigation, in violation of Articles 81, 118, and 134. The appellant was also sentenced to reduction to E-1, total forfeitures, and a dishonorable discharge.
The CCA considers numerous thorny issues, ultimately finding no prejudicial error. The appellant, “a 30-year-old Staff Sergeant (SSgt) stationed at his fourth duty station,” brutally murdered his paramour’s husband, Technical Sergeant Eccleston. Slip op. at 2. The murder was planned with the victim’s wife, and the appellant tried to cover it up, but he eventually confessed and a capital referral followed. There were extensive PTA negotiations to avoid the possibility of a death sentence. The appellant’s third PTA offer was accepted, making the case non-capital but providing no other protections. In addition, the PTA included provisions that waived most objections, waived all waivable motions, waived discovery, waived continued funding for expert consultants, and required the appellant to answer questions about, and testify against, his paramour.
The appellant did not object to the PTA at trial, but on appeal he asserted that the PTA created “an ’empty ritual’ rather than a full sentencing proceeding,” and that “the potential for the death penalty in this case caused a coercive environment during the PTA negotiations.” Slip op. at 11. The CCA rejects these arguments, explaining that “waiver of evidentiary objections is a permissible term of a pretrial agreement,” slip op. at 13 (marks and citations omitted), “a promise to testify as a witness in the trial of another person is a permissible term of a PTA,” slip op. at 14 (marks and citations omitted), “a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution,” slip op. at 15 (marks and citations omitted), and noted that because it was the appellant who proposed these terms, the court is “not inclined to deprive the appellant of the benefit of his bargain.” Slip op. at 15.
The PTA provisions were certainly broad (perhaps even to an unprecedented degree), but I think it’s hard to second-guess the appellant’s decision to agree to them. Still, one provision gets special attention from the CCA. The appellant agreed to “waive my right to all future discovery with the exception of discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and R.C.M. 701(a)(6) or any limitation by Rules for Courts-Martial (R.C.M.) 705(c)(1)(B).” Slip op. at 16. “The effect of the provision in this court-martial was that it limited the production of possible impeachment evidence.” Slip op. at 17. Specifically, the CCA notes that friends and family member of the victim who testified during the sentencing hearing said things “that indicated they had mental health records.” Slip op. at 16. However, “at best, the appellant proffers the mental health records may have revealed the witnesses had more than one reason for seeking counseling unrelated to the horrific and senseless murder of their friend.” Slip op. at 17. The court concludes that this “provision, as applied to this case, did not convert this proceeding into any empty ritual and did not violate public policy.” Slip op. at 17.
The CCA also considers the relationship between the military judge and the trial counsel. “The military judge was Colonel (Col) Vance Spath. An Article 39(a), UCMJ, 10 U.S.C. § 839(a), session was held on 28 November 2011. When the court-martial reconvened on 30 January 2012, Col Don Christensen had detailed himself as trial counsel.” Slip op. at 5. “Along with being trial counsel in the present case, Col Christensen was also the Chief of the Government Trial and Appellate Counsel Division (AFLOA/JAJG)—a position he continues to hold.” Slip op. at 6. The appellant argued that Col Christensen’s appellate duties creates a conflict of interest because he “defends the decisions of military judges and trial counsel” and particularly because he was defending the actions of Colonel Spath who served as the trial counsel in the capital case of United States v. Witt, 73 M.J. 738, No. 36785 (A.F.Ct.Crim.App. Jun. 30, 2014) (discussed here). The CCA rejects both this argument and a claim of ineffective assistance of counsel asserting that the trial defense counsel conducted insufficient voir dire of the military judge.
The court also rejects an assertion of error related to the trial counsel’s sentencing argument:
Trial counsel referred to the appellant as “a coward and a pathetic murderous person,” and to him and Ms. Eccleston [the victim’s wife] as “two pathetic wastes of space.” Trial defense counsel objected and trial counsel countered that the appellant referred to himself as a coward and pathetic in his admitted confession. The military judge overruled the objection.
Slip op. at 18. The trial counsel also also referred to the victim’s wife as “a witch,” but the CCA notes that “evidence had earlier been introduced that Ms. Eccleston attempted to practice witchcraft and to cast a spell on her husband to hurt him.” Slip op. at 18 n.8. The CCA finds that “the arguments by trial counsel were well within bounds,” and that “the limited references to the appellant and his co-conspirator with disparaging terms were not outside the bounds of fair comment or beyond the norm.” Slip op. at 19.