Can victims limit prosecutorial discretion

The military SVC programs have been ongoing for a little while. So some signs of the good and bad are starting to show. It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations. One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case. But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting. The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount. The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice. That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations. The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary. And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim. So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything. The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial. United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement. For example, by executive order the President has declared that certain matters may not be bargained away. R.C.M. 705(c)(1)(B). An acceptable term is restitution. As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial. That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto. To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that. Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal. For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer. It is far better to enter negotiations informed, rather than have a potential problem on appeal.