Back in 2013, in this post, I wrote about the Air Force case of United States v. Carr, No. 38025 (A.F. Ct. Crim. App. Aug 15, 2013), where the convening authority initially disapproved the adjudged bad-conduct discharge, but then the Air Force CCA went to considerable lengths to allow the convening authority to correct that action and approve the discharge.

Now the Coast Guard CCA addresses similar errors in a convening authority’s action that violated the terms of a pretrial agreement:

For a third time, the action suspends confinement in excess of ten months, even though the pretrial agreement called for disapproval of confinement in excess of ten months. Appellant has consistently pointed out this flaw, and the Convening Authority, with the advice of the Staff Judge Advocate, has persisted in this violation of the pretrial agreement. Inexplicable as this violation appears, we are confident that the suspension has not been vacated, else Appellant would have complained further. Though given repeated opportunities to conform the Convening Authority’s action to the terms negotiated, the Government has failed to do so. We do not condone the Government’s failure in this regard, but we are not inclined to remand again in the hope that the Government will at last give attention to and correct this obvious error. No action is needed beyond our disapproval of confinement in excess of ten months.

The approval of confinement beyond the limit set in the pretrial agreement is not the only flaw in the Convening Authority’s action. Again, for a third time, the action provides that automatic forfeitures will be deferred for six months. This provision bespeaks ignorance of the vocabulary of the UCMJ.

United States v. Matthews, No. 1382, slip op. at 3 (C.G. Ct. Crim. App. May 20, 2015) (emphases added) (link to slip op.).

This being the third time the CCA considered the case (the first was in a published opinion that I discussed here; the second resulted in a summary remand without written opinion, ostensibly to fix this error), the CCA simply gives up and fixes the problem itself:

Appellant now moves again for remand for a corrected convening authority action, and for leave to file this motion. The motion for leave to file is granted. The motion for remand is denied. We have the power under Article 66, UCMJ, to correct the flaw in the Convening Authority’s action without another remand.

Slip op. at 4. However, the CCA only conforms the sentence to the terms of the pretrial agreement. It grants no actual relief to the appellant, either for the Government’s “persiste[nce] in this violation of the pretrial agreement,” slip op. at 3, or for the one year, eleven months, and eight days between the date of the guilty plea and the completion of the CCA’s review.

11 Responses to “How many licks does it take to comply with a pretrial agreement?”

  1. stewie says:

    Would have been nice for the CG to give some sort of Tardiff-esque credit in this case.

  2. No Names says:

    And who is this mysterious Staff Judge Advocate who “has persisted in this violation of the pretrial agreement” and whose actions “bespeak ignorance?”  Is there some reason public servants who repeatedly fail to do their jobs should remain nameless ?  Is there a reason such an officer should still receive a paycheck from the taxpayer?  Is there any accountability for malfeasance by government actors in the provision of military justice?  If there is, it certainly isn’t being made public.  Unless there is public accountability for individual servants who fail the system, the system itself gets left holding the bag and looking incompetent.  

  3. stewie says:

    Interesting, because the Army names the SJA(s) along with the military judge in every opinion, looks like the CG does not.

  4. John O'Connor says:

    A sad commentary, but no harm no relief.  The accused gets a minor windfall by having the excess confinement disapproved rather than suspended because he can now tell people he had a lesser sentence.

  5. Zachary D Spilman says:

    A windfall, John O’Connor?

    the action suspends confinement in excess of ten months, even though the pretrial agreement called for disapproval of confinement in excess of ten month

     

  6. stewie says:

    Wait, you mean the government has to follow through with their end of a pretrial agreement??!!

  7. John O'Connor says:

    i hadn’t had enough Diet Pepsi yet that day.  I should have left it is no harm no relief (other than conforming CA action to the PTA)

  8. RKincaid3 (RK3PO) says:

    The money quote from Zack is that the CCA:
     

    …grants no actual relief to the appellant, either for the Government’s “persiste[nce] in this violation of the pretrial agreement,” slip op. at 3, or for the one year, eleven months, and eight days between the date of the guilty plea and the completion of the CCA’s review.

     
    So, in the end, we have no disincentive for future government misconduct—no matter how flagrant—or ignorant—the government’s conduct at issue, be it either in the form of blatant ignorance of the rules, the sheer indifference to the due process rights of the accused or the plain remedial directions of superior court orders to remedy said ignorance, indifference and disobedience.
     
    Remind me again how the UCMJ is supposed to have anything to do with justice as that word is used in substantive American legal history?

  9. stewie says:

    So, the UCMJ only has anything to do with justice if there’s never an unjust ruling/result? 

  10. RKincaid3 (RK3PO) says:

    No, Stewie. There is no unjust result when the rules are equally applied and when violations of same result in appropriate, meaningful remedy. When the rules are flagrantly violated to the detriment of any party and there is no penalty for such willful violation, well, then that is unjust. Justice is NOT result oriented–it is process oriented. It is objective, not subjective. This willful disregard of the contract (the OTP) between the accused and the CG and the blatant, continuing refusal to fix the error even after being told multiple times to fix it is the injustice–especially if the remedy doesn’t inure to the accused’s benefit beyond simply receiving the benefit of his OTP.
     
    The failure of the appellate court to sanction (punish) the governments “in your face” impudence is a failure to lead and a failure to serve notice on other wayward, errant court actors (both the government and the defense) that such future misconduct will not be tolerated.  That failure only encourages future indifference to both substantive and procedural due process rights and implements a manifest injustice to the rights of the parties.
     
    Any right which is violated and which consequently cannot be vindicated upon its violation means that there is no right at all to begin with.
     
    The government has not suffered in the least in this case from its abhorrent indifference to the rights of the accused. And the accused was only made partially whole by the remedy–merely enforcing the OTP only gives what should have already been given. The lack of a sanction for the delays and the lack of a substantive, meaningful remedy (benefitting the accused) for those delays is an injustice and it is now certain to be repeated in other cases.

  11. stewie says:

    Not sure you got my point. You made a blanket statement/response to an individual error. I understand the concept of message sending, but I also understand that any one message is often overstated.