The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

This case does not present a situation similar to that addressed by this court in United States v. Hutchins, 68 M.J. 623 (N.M.Ct.Crim.App. 2010), rev. granted, __ M.J. __ (C.A.A.F. June 7, 2010), a trial-level severance issue analyzed under R.C.M. 505 and 506.

In his unrebutted affidavit, Capt F stated that he was detailed in anticipation of Capt M’s departure. Capt F stated that during this post-trial phase, he was in touch with Capt M, and that Capt M informed him that clemency matters had already been submitted. Capt M also informed Capt F that Capt F was needed to receive the SJAR, but that no further substantive action would be required. Capt F was under the impression that the previously submitted clemency request would be reviewed by the CA in due course. Capt F stated that he made no attempt to contact the appellant, believing that his duties were “administrative in nature.”

However, NMCCA did not agree with that view of the situation.

Capt F did have an affirmative obligation pursuant to both R.C.M. 1106(f)(2) and Miller to form an attorney-client relationship with the appellant. He was also obliged to take further action as required to protect the interests of the appellant. The obligation to form the relationship, review the SJAR and take such action as required was not one that prospectively could be limited by what Capt F describes as Capt M’s suggestion that no further action was required other than to receive the SJAR.

As best we can tell there was nothing meaningful that the substitute counsel could have done and he was there effectively for administrative purposes – on the facts of this case, because, “There is no colorable claim to prejudice in this case.”

On being detailed as substitute counsel post-trial the first step should be to make contact with the client. Only then can counsel be certain that . . . .

United States v. Sanchez is back with the same result. There was a time when the SJAR used to be a long and complete and thorough briefing sheet to the commander acting post-trial. Because of a very very few lost cases on post-trial delay and the amount of work required the SJAR has developed into a “I read the case, approve it.” Thus the “advice” has been moved behind closed doors. Can anyone imagine that when a CO wants to talk about granting clemency on a case she doesn’t call in the SJA for advice which, without a written document, is unknown. Yes, we have gotten here because of all of the litigation over the years because of inaccurate or erroneous advice. So, rather than enforce giving “balanced” (see Sanchez), accurate, and correct advice we now have a situation where the CO gets as much unbalanced, potentially biased, and potentially wrong information as the SJA is able to give. What a cure. But the defense does have a role to play in this.

It seems to me that trial defense counsel should go back to the earlier SJAR forms and create a macro document similar to that old SJAR. A tasker for the chief defense counsels at their next annual meeting. Have the paralegal go through the ROT and other documents and basically fill in the data. The CO isn’t going to read through the ROT and the SJA can’t be relied upon to tell her the good stuff. For that matter, why not start the document prior to trial. That way you can prepare for trial better. You are already working on the I-Love-Me book, and the paralegal is often working on the index, so why not go a little further. The AF has a good start with their PDS that’s prepared for court.

United States v. Cudjoe.

Before this Court, Appellant has assigned two errors: (1) the military judge erred by failing to consider dismissal of two of the three charges that he determined were unreasonably multiplicious after the case on findings; and (2) this Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c). We reject the first issue, and grant a small measure of sentence relief on the second.

Here’s the graveman of the case:

The evidence of all three offenses was to the effect that Appellant applied for and received a CapitalOne credit card in the name of [] a Coast Guard petty officer for whom Appellant had made an identification card in the course of his duties, and used the credit card to buy merchandise in stores. Ultimately, CapitalOne was not paid for charges in the amount of $1,148.60 on this credit card account, taking a loss of that amount.

Here’s the field test:

The Court of Appeals for the Armed Forces “ha[s] endorsed a five-part test for determining whether the Government has unreasonably multiplied charges: “(1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications? “(2) Is each charge and specification aimed at distinctly separate criminal acts? “(3) Does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality? “(4) Does the number of charges and specifications unreasonably increase the appellant’s punitive exposure? “(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?” United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) (citing United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)).

I think I would add (6) Did the government deliberately or unintentionally charge the greater and a lesser offense separately, to be more clear on a pretrial checklist; especially in light of Jones.

United States v. Bond. There’s a little prior history to the case not relevant to the field. In additional Judge McTague dissented. Expect to see this case certified.

The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy.

An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted.

Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation.

The Government asserts in its new brief that our 16 March decision granted equitable relief, which CAAF has declared to be beyond the power of a Court of Criminal Appeals (CCA). United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010). Appellant, meanwhile, continues to argue that the offenses of which he was found guilty were minor ones for which he had already been punished, and therefore the convictions should be set aside.

Here’s the graveman of the case:

Subsequently, Appellant was charged with Rape, arising from alleged conduct following a party while in THETIS’s homeport of Key West, Florida, as well as the Barbados charges. Appellant’s motion to dismiss the Barbados charges for “prior jeopardy” (Appellate Ex. XXIII) was denied.1 Following a contested trial, members found Appellant not guilty of the most serious charge of Rape, and found him guilty of only the Barbados criminal conduct for which he had already received punishment at Captain’s Mast, with a difference. Specifically, he was found guilty of the same offenses of drunkenness and indecent language, but instead of the offense of attempted indecent assault, he was found guilty of assault consummated by battery.

The bottom line:

In short, none of the offenses of which he was found guilty at trial rises above the “minor” level on the basis of the maximum sentence [and looking at the whole case rather than specific charges]. Considering all the circumstances with due regard for the lack of intent to gratify his lust or sexual desires, we view the incident, as found by the court-martial, as minor. This does not mean that trial on the three specifications was improper.

With a reference to United States v. Nerad, the court finds:

We do not think these findings of guilty should be approved. . . . In short, we believe our disapproval of the findings of guilty is within our power under Article 66, UCMJ, and Nerad. We will act accordingly.

And just to be sure:

In case our action is found to be unauthorized, we also find that a bad-conduct discharge is an inappropriately severe punishment for the offenses of which Appellant was found guilty.

Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection

Stephanos Bibas, University of Pennsylvania Law School, U of Penn Law School, Public Law Research Paper No. 10-33, California Law Review, Vol. 99, Forthcoming

Abstract:
Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

For court-martials under the UCMJ, think United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006)(sex offender registration) and Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), aff’d and remanded, United States v. Denedo, 129 S. Ct. 2213, 2224 (2009)(immigration consquences). For further information about Denedo here is my post after the March 2010 action by NMCCA, and here is the denial of a grant by CAAF in September 2010. Sadly, Denedo lost his challenge at CAAF because his appellate defense counsel missed the filing deadline. So an appellate case that – Denedo alleges — began with trial defense counsel IAC ends with his appellate defense counsel missing a filing deadline.

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court. [this is not good cause to waive the deadline] Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied[.]

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a general order, false official statement, and two specifications of larceny (from his fellow soldiers), in violation of Articles 92, 107, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, and 921 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to the grade of E-1. The military judge further recommended that only twelve months of confinement be approved, if appellant made full restitution. The convening authority, as an act of clemency, limited confinement to fifteen months, and otherwise approved the adjudged sentence. In his brief, appellant raises one assignment of error, post-trial ineffective assistance of counsel, which warrants discussion, but no relief. (Emphasis added.)

So what was the post-trial IAC you ask? Yes, failure to get input from the client, but . . .

[A]ppellant’s defense counsel submitted a two-page memorandum to the convening authority as a request for clemency pursuant to Rule for Court-Martial [hereinafter R.C.M.] 1105/1106 along with four enclosures to the memorandum. The memorandum requested the convening authority grant clemency by disapproving appellant’s bad-conduct discharge and confinement in excess of six months. (Emphasis added.)

OK so far, the counsel noted the military judge had made a clemency recommendation for only 12 months confinement. You see it? A bit more.

The enclosures which accompanied the memorandum included a thirty-two page “good soldier book” containing a brief autobiography, awards, schooling, certificates, achievements, and letters of support. An e-mail from the mother of appellant’s child was also enclosed. Finally, the enclosures included a letter of apology to Private First Class (PFC) JG promising restitution and an accompanying money order, and an e-mail discussing appellant’s having paid restitution to PFC JG.

Sounds good does it not? Well,

Despite the voluminous R.C.M. 1105/1106 submission, appellant claims he was never advised by his defense counsel regarding his opportunity to submit clemency matters. Appellant avers, specifically, “My attorney never contacted me about my clemency matters nor was I advised that I was able to provide my own clemency letter.” Appellant submits, had he been contacted, he would have requested the convening authority limit confinement to twelve months, as recommended by the military judge, rather than six months, as his counsel requested, and would not have asked that the bad-conduct discharge or reduction in rank be disapproved or for any other relief. Appellant asserts that counsel’s bold request caused him to lose credibility with the convening authority.

ACCA finds no prejudicial error. Basically the CG gave some clemency but there’s no likelihood he would have gone down to 12 even if that were the request. ACCA does not say there was an error by defense counsel. They resolve that (apparently assuming error) there was no prejudice under Strickland.

It’s hard to tease out a teaching point from this case.

1. We see a common issue post-trial:

Appellant does not aver in his affidavit that he did not receive the SJAR. Nor does he suggest that he attempted to contact his counsel regarding his clemency submission or submit clemency matters on his own.

So there seems to be an assumption that the court agreed the trial defense counsel did not contact the appellant post-trial. But where did the restitution and the apology letter come from? Did they have it ready at the time of trial. I’ve certainly done that in cases and introduced a copy of the check (although some years ago I did have a trial counsel object this wasn’t proper mitigation).

What did the client say immediately after trial in the post-trial debrief with the client about a clemency request? I make it a habit to do this, that helps with focusing on what’s next. I might add this is when I really advise on post-trial rights. The post-trial rights forms used on the record are boiler-plate. Until you know the actual sentence it is unrealistic in my view to properly and fully advise on post-trial actions and rights.

Did the trial defense counsel believe that post-trial with all of the mitigation that the CA would be willing to consider six months vice 12? Or did the trial defense counsel fail to balance the mitigation against this being a barracks thief?

The military judge made a clemency recommendation.

The SJAR failed to note the clemency recommendation.

The TDC failed to comment on the SJAR failure.

Phew! And here’s why.

Before this court, Appellant has assigned as error that Appellant was prejudiced by the omission of mention of the military judge’s recommendation for clemency in the Staff Judge Advocate’s Recommendation (SJAR). After announcing the sentence, the military judge recommended on the record that the Convening Authority suspend the bad-conduct discharge for a period of thirty-six months[.]

Aha,

Part II of the pretrial agreement contained a suspension provision, requiring the Convening Authority to suspend a punitive discharge for six months, at which point, unless sooner vacated, it would be remitted.

So now post-trial

Post-trial, neither the SJAR nor the SJAR Addendum mentioned the military judge’s recommendation. Trial defense counsel did not comment on the thirty-six-month suspension recommendation in his Rule for Courts-Martial (R.C.M.) 1105, Manual for Courts-Martial, United States (2008 ed.) submission. R.C.M. 1106(f)(6) provides, ―Failure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.‖ If defense counsel does not make a timely comment on an omission in the SJAR, the error is waived in the absence of plain error. United States v. Halsey, 62 M.J. 681, 683 (C.G.Ct.Crim.App. 2006); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).

There’s more to read, but in this case there was plain error because regardless of TDC opportunity to comment the SJA is required to comment on a sentencer clemency recommendation, and in this case the appellant did better than the MJ recommendation.

The better practice is still for the TDC to make the point. On appeal the appellate counsel made this argument.

Appellant argues that he was prejudiced because the military judge’s ―unusual recommendation‖ was a strong message that he saw redeeming qualities in Appellant. He also contends that if the Convening Authority knew the military judge’s recommendation, then the Convening Authority might have decided to retain rather than administratively discharge Appellant1 or grant some other relief.

That argument didn’t sway CGCCA. But, what if it had been made to the CA post-trial? If the TDC had taken the point and argued it might there have been a different result. Methinks unlikely, but it should have been worth the effort.

Gannet News While he still vacillates between regret and indignity over what happened in Iraq, he has given up thoughts of going back to retrieve a separate bundle of money that he says he found and buried in the sands — and Army investigators never discovered.

Army Times reports:

Less than two years ago, Earl Coffey stood on the shore of the Gulf of Mexico, a broken man, holding his Army uniform, photos and military medals in his hands. The son of Kentucky coal miners, Coffey had watched his life unravel after his theft of a dictator’s desert treasure became an almost biblical curse — running through his hands like sand, landing him in prison and sending him on a downward spiral of homelessness, divorce and drug addiction. With nothing left, Coffey tossed the remnants of his 13-year Army career into the surf — and began a long walk home to the Appalachian mountains of Harlan County, Ky. . . Coffey, 36, has since rebuilt a quiet life among the coal mines that he escaped by joining the Army — only to become one of seven U.S. soldiers convicted in 2003 of “looting and pillaging” for his part in stealing the $586,000 in cash he found in one of Saddam Hussein’s bombed-out Iraqi palaces.

No. 10-0468/AR. U.S. v. Sonya M. WATSON. CCA 20080175. Review granted on the following issue: WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT’S ADMINISTRATIVE DISCHARGE WAS VOIDABLE AND PROPERLY REVOKED AND DID NOT REMIT THE ADJUDGED DISMISSAL. Briefs will be filed under Rule 25.

So, what are the limits on computer and technology use for those convicted of sex offenses? Although rules may vary, many state lawmakers have begun to advocate for ways to limit sex offenders’ use of technology to find more victims.

And here:

Tracking sex offenders is a complex process. To do it, many states have rolled out tough comprehensive plans. For example, in California, Jessica’s Law has been enacted as a way to provide sex offender management. But with so many people on the sex offender registry list, it has become challenging for law enforcement to effectively track them all. So what is sex offender monitoring?

Findlaw Blotter reports.

The Third Circuit has today issued an interesting opinion concerning supervised release conditions for a repeat sex offender. The ruling in US v. Heckman, No. 08-3844 (3d Cir. Jan. 11, 2010) (available here), gets started this way: Arthur William Heckman was indicted and pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1). He was sentenced to 180 months’ imprisonment, followed by a lifetime term of supervised release. On appeal, Heckman challenges three “Special Conditions of Supervision” imposed by the District Court for the remainder of Heckman’s life: 1) an unconditional ban on Internet access; 2) a requirement that he participate in a mental health program; and 3) a restriction on any interaction with minors. While we affirm the mental health condition, we vacate the other challenged conditions and remand for resentencing consistent with this opinion. At the close of the opinion, the Third Circuit panel describes the defendant as “lifelong sexual predator,” but then summarizes the reason for its ruling this way: When imposing special conditions of supervised release, it is limited to those conditions that “involve[] no greater deprivation of liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). Furthermore, the Court may not delegate to a probation officer the authority to “decide the nature or extent of the punishment imposed upon a probationer.” Pruden, 398 F.3d at 250. In vacating certain of the District Court’s special conditions in this case, we do not mean to question the need for release supervision responsive to Heckman’s specific offense and his lifetime of misdeeds. To do so, however, requires a balancing of considerations that affect not only this case, but those that follow.

The Camp Pendleton-based squad leader is serving an 11-year sentence for killing an unarmed Iraqi civilian. But the sheriff in his hometown in Massachusetts wants to hire him. Reporting from San Diego – A Marine from Camp Pendleton, convicted of murdering an unarmed Iraqi civilian, has a job waiting with the sheriff’s department in his hometown in Massachusetts once he is released, a Navy parole board was told Wednesday.

LA Times reports.

The CGCCA has been the most vigilant of the services in protecting an accused’s post-trial rights, so the decision in this case seems odd. There is no evidence that any of the proper procedures were followed in this case except for allowing the defense counsel to review the ROT.

Also, there is no clemency materials submitted by either the defense counsel or accused. Did the defense counsel contact the appellant? Did the appellant have anything to submit?

Maybe this is a form over substance case. The case was submitted on its merits and so perhaps the appellate counsel contacted the players and found that there would be no prejudice. But the dissenting opinion outlines the issues nicely and it doesn’t look good. So I’m curious to see what CAAF does, if anything.