In this order, United States District Judge Anthony J. Trenga of the United States District Court for the Eastern District of Virginia upheld a federal magistrate judge’s earlier ruling (United States v. Espinosa, 789 F. Supp. 2d 681 (E.D. Va. 2011), which the No Man discussed here) that the United States can’t prosecute Marines for DWI in U.S. District Court after they had previously been NJPed for the same offense. United States v. Crank, No. 1:11-cr-222 (AJT) (E.D. Va. March 16, 2012). The decision arises from a policy in place at MCB Quantico to first NJP and then prosecute in U.S. District Court a Marine who is charged with DWI aboard MCB Quantico. Judge Trenga noted that while under a DOJ-DOD MOU, on-base DWIs are “to be resolved within the military justice system and not the civilian courts,” MCB Quantico is one of at most two “Marine Corps installations within the geographical area covered by the Fourth Circuit” that doesn’t adhere to the policy of dealing with on-base DWIs through the military justice system. Id., slip op. at 1.
Judge Trenga is a highly regarded George W. Bush appointee.
Judge Trenga’s opinion held that under Brady v. United States, 397 U.S. 742 (1970), which deals with waivers of constitutional rights and which both parties and Judge Trenga concluded applied to the validity of “waiving the statutory right to a court-martial,” “in order for the defendants’ court-martial waivers to be valid, these defendants were required to have counsel, or have validly waived counsel, who could advise them on the ‘direct consequences’ of that court-martial waiver.” Crank, slip op. at 7, 8. Judge Trenga concluded that the NJP counseling provided at MCB Quantico (which is no different than the NJP counseling provided elsewhere in the Department of the Navy) failed to meet that standard.
Judge Trenga first considered whether prosecution in U.S. District Court was a direct or collateral consequence of the waiver arising from the acceptance of NJP. He concluded that it was a direct consequence:
[T]he challenged consequence in this case directly, immediately, and automatically resulted from the defendants’ waivers. Specifically, the court-martial waivers were the sine qua non for the government’s ability to proceed with a civilian prosecution for the same conduct; and while the government’s decision to pursue prosecution in this Court may depend on certain other prosecutorial decisions (although the policy in place at Quantico appears to have already decided any such issues, making the civilian prosecutions “largely automatic”), with the Double Jeopardy Clause out of the way, no other decision or action was necessary to confer on the government the legal ability to proceed in this Court. For these reasons, the Court concludes taht the elimination of the Double Jeopardy Bar, and the possibility of these civilian prosecutions, were direct, not collateral, consequences of these defendants’ waivers of their right to trial by court-martial.
Id., slip op. at 10-11.
Judge Trenga then explained why he concluded that the defendants didn’t have “sufficient information about [the possibility of a civilian prosecution] to make their waiver ‘voluntary, knowing, and intelligent.'” Id., slip op. at 11. He reasoned:
Here, the defendants were told that absent a waiver, both a civilian prosecution and a court-martial could not take place. The issue is whether that information was enough to obtain a valid court-martial waiver. Based on the facts and circumstances of this case, the Court concludes that because the military lawyers offered to the defendants could not counsel them, within an attorney-client relationship, about the range of relevant considerations concerning whether to waive a court-martial, their waiver was not “voluntary, intelligent, and knowing” and therefore invalid.
The requirement under Brady that a waiver be voluntary, knowing, and intelligent is premised on a defendant having the benefit of legal counsel with respect to issues that need to be assessed and the decisions that need to be made. . . . None of the defendants were appointed counsel in connection with these charges within the military justice system. Rather, the military authorities told these defendants that they had a right to speak with a lawyer and that if they wanted to speak with a lawyer, a military lawyer would be available to them, free of charge. Three of these defendants, Espinosa, Gipson, and Ware, met with military lawyers, only to learn that the military lawyers disclaimed any intention or ability to establish an attorney-client relationship and limited the nature and scope of the information and advice they would or could provide. Further, it is undisputed that the military lawyers made available to the defendants did not provide, and were under instructions not to provide, any advice as to the civilian prosecution other than the date of their appearance and the fact that a waiver of a court-martial would allow it to proceed.
Given the restricted scope of advice made available to these defendants, it is not surprising that there is nothing in the record that establishes that these defendants were even generally aware of the consequences of opening themselves up to a virtually certain civilian prosecution or that they “possess[ed] an understanding of the law in relation to the facts.” Smith, 640 F.3d at 592 (quoting McCarthy, 394 U.S. at 466). For example, there is no evidence in the record that the defendants had even the most basic information about the maximum penalty they could receive in the civilian prosecution and how these penalties compared to what they would likely receive in either a court-martial or a NJP. In short, the defendants knew only that they would have a civilian court date if they elected NJP. As a result, none of these defendants received any meaningful assistance of counsel. In fact, for the purpose of determining whether each defendant had made a valid waiver, the Court concludes that these defendants effectively had no access to any lawyer. Without a lawyer that could, within a privileged setting, provide the relevant information, assessment, and advice pertaining to the direct consequences of their court-martial waivers, these defendants could not voluntarily, knowingly, and intelligently waive their right to trial by court-martial.
Id., slip op. at 11-13 (footnote omitted).
The court also held that the lawyers who waived their right to speak with counsel before deciding whether to accept NJP also didn’t “validly waive their right to counsel under the specific circumstances of this case” because “the government’s offer to provide counsel was misleading, if not illusory.” Id., slip op. at 13. “In fact, the entire procedure in place at Quantico for obtaining a court-martial waiver was premised on the view that these defendants did not have a right to a lawyer that could adequately advise them. As one of the military lawyers testified, the opportunity to consult with military lawyers was premised on the curious notion that the defendants had only the ‘right to talk to counsel before NJP,’ not the right ‘to have counsel.’ For that reason the defendants who chose not to consult with a military lawyer simply passed on a nearly worthless opportunity. The Court cannot conclude that these defendants’ waivers of counsel under these circumstances are valid.” Id.
Judge Trenga responds to the government’s argument that it would be too hard to provide meaningful advice to service members before NJP with, in essence: tough. Id., slip op. at 14. And he points out that it wouldn’t matter if MCB Quantico didn’t, as a matter of policy, attempt to both NJP Marines for DWI and have them prosecuted in U.S. District Court for the same offense — a policy that Judge Trenga suggested may violate the Memorandum of Understanding between DOJ and DOD set out in Appendix 3 of the MCM. Id.
Finally, Judge Trenga explained why dismissal of the charges in U.S. District Court was the appropriate remedy where the NJP had already been imposed and served. Id., slip op. at 14-15. He concluded with this observation about the relationship between Article III courts and the military justice system:
The Court shares the government’s view that this Court should not inject itself into the military justice system by altering the outcome of proceedings within that system. For that reason, this Court’s vacating the NJPs based on the invalid waivers would inappropriately extend its reach into the military justice system, as well as possibly compound, rather than cure, the injuries these defendants sustained as result of the invalid waivers.
Id., slip op. at 15.
Congratulations to Assistant Federal Public Defender (and a friend and former colleague of many CAAFloggers) Brian Mizer for a huge win.