It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators. The PTAO languished. Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.” The TC then provided the DC with a grant of immunity and order to testify. The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].” Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

The contents of the subsequent exchange are disputed by the parties[.]

Some documentation may have helped – email for example. It appears the defense counsel did not press the issues of ongoing PTA negotiations and clarify what was going on. (This may have happened and that has not been put into the opinion, but the tenor of the opinion belies that.)

Notably, the appellant does not contend on appeal that the second trial counsel ever told him or his counsel that the offer had been accepted.

And apparently the DC never asked? On appeal appellant was left to argue:

The appellant’s main argument is that the Government constructively accepted his 9-month offer when its agents took advantage of his cooperation in the co-conspirator’s case. We find that the appellant waived this issue when he entered an unconditional guilty plea according to the negotiated 12-month pretrial agreement.

If the defense thought that they had an implied agreement or acceptance of an agreement, then a motion to “compel” or enforce an implied agreement would have been proper at the time of trial.

The first time the defense raised the 9-month confinement cap was in their clemency letter of 1 February 2012, making a case in equity based on the cooperation of the appellant in the absence of an approved pretrial agreement.

A pretrial motion to enforce an implied PTA would have helped ferret out the facts, make a record, and have a military judge possibly agree with the defense. At least NMCCA would not have been able to find waiver, would have been forced to address the issue (had the MJ ruled against the defense), and Appellant might have gotten some pyrrhic appellate relief (trial was in December 2011 and the decision is dated yesterday).

Trial counsel could have helped here in being clear about what was happening with the PTA negotiations and the immunity issues. (Although perhaps that’s where some of the undocumented discussions are disputed.)

Missouri v. Frye

Issue: Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel’s error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?

Certiorari-Stage Documents

• Petition for certiorari
• Brief in opposition
• Amicus brief of Connecticut and eleven other states
• Petitioner’s reply

Lafler v. Cooper

Issue: Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

SCOTUSblog Coverage

• Petition of the day

Briefs and Documents

Certiorari-Stage Documents

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

The Coast Guardsman piloting the boat that killed 8-year-old Anthony DeWeese might have served a year or less in prison if his lawyers had pursued a plea deal dangled by the prosecution.

It is unclear how the emails surfaced publically.

Air Force Times reports:

The attorney for a former al-Qaida cook said Monday that the government did not deliver on a promise that led him to plead guilty to supporting terrorism, and she said that could discourage other inmates at Guantanamo from reaching deals with prosecutors.

Fine so far. But is there a problem?

Ibrahim Ahmed Mahmoud al-Qosi of Sudan was removed from a communal-living compound over the weekend, and placed in more isolated confinement, despite a recommendation in the plea agreement that he stay, a Pentagon official said (emphasis added).

So what’s the beef?

There was no guarantee that al-Qosi would stay in the prison camp reserved for the most cooperative detainees, but that was the recommendation of the Pentagon official who oversees the tribunal system and prosecutors made personal pledges to ensure that it happened.

Before agreeing to this provision, did the defense counsel or the prosecution talk to the task force commander to determine what course of action would be taken?

So what’s the beef? Is there a deal breaker? Why be upset if there was no guarantee?

In United States v. Smead, 68 M.J. 44 (C.A.A.F. 2009), the issue came up with an agreement that the accused sex-offender would be sent to Miramar for confinement. The reason being that Miramar has the better of the sex offender treatment programs compared to the USDB and any of the other military confinement facilities.

In the pretrial agreement entered into by the parties at Appellant’s initial hearing, Appellant agreed to plead guilty to a number of the charges against him, and the convening authority agreed to withdraw and dismiss the balance of the charges with prejudice. The pretrial agreement also provided that Appellant would be confined at the Miramar base brig so that he could complete a sex offender treatment program.

Smead raised this on appeal and got his wish.

At Appellant’s rehearing, the Government reinstated all charges against Appellant, including — over Appellant’s objection — the charges that had been dismissed with prejudice at the first court-martial. The parties then entered into a new pretrial agreement, which included new sentencing provisions and dismissal with prejudice of the charges previously dismissed after Appellant’s first court-martial. For the reasons set forth in Part II, we conclude under the particular circumstances of this case that the Government at the rehearing improperly reinstated charges previously dismissed with prejudice. In that regard, we note that the Government failed to implement several provisions of the initial pretrial agreement, and compounded its errors by failing to implement the order of the court below on remand. We also note that the Government did not negotiate an agreement providing for withdrawal from the pretrial agreement under applicable circumstances, and that the proceedings did not otherwise involve conditions authorizing reinstatement of previously dismissed charges.

But the error was not prejudicial. This case presents an interesting discussion of pretrial agreements, novel terms, construction or absence of usual terms, and the effects of winning on appeal regarding certain PTA issues.

Women usually go to Miramar for confinement. Officers usually go to the USDB. Beyond that the issue is one of bed space for the person according to the offenses and the sentence. True, most sex offenders go to Miramar and most involved with drugs and alcohol may end up at Charleston. But that’s not a guarantee, the bureaucrat at the Army assigns bed space generally on “Space A.”

Not a novel term, but the issue of deferment and waiver of forfeitures must take into account the members EAOS (ETS, EAS, and whatever the AF calls it).

Don’t get me wrong, I’m a supporter of being creative in fashioning pretrial agreements. Frankly I wish there were more options available to negotiate over. But currently there are limitations. From time to time I have offered and had accepted a restitution provision. If no later than 30 days from the date of trial (or some other suitable date) the accused pays the theft victim $x.00, for the loss of his stereo, the CA will take X clemency action (this presumes there has been no Article 139, UCMJ, claim paid). In another case, if the client pays $x.00 toward counseling for an assault victim, the CA will take X clemency action. Those are ways to get a victim made closer to whole rather than money in the Treasury and a way to help the CA feel better about giving a thief a break on confinement.

The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity. R.C.M. 704 covers the issues of immunity, tempered by case law. Basically only the GCMCA can grant immunity, but . . . . Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing. See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

The military judge found that a promise of immunity was made to the appellant by a person the appellant reasonably believed had the authority to make such a promise. Nonetheless, the military judge also ruled that the trial defense counsel’s representation was not so deficient as to overcome the presumption of her competency.

The Dubay judge had found that the appellant did not detrimentally rely on his sergeant major’s offer of immunity. See generally, United States v. Churnovic, 22 M.J. 401 (CMA 1986), for a discussion of the de facto immunity concept. In Churnovic the court had this point.

On several occasions, this Court has rejected claims that prosecution was barred by an assurance given the accused that he would not be prosecuted. For example, in United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960), a squadron commander’s promise of immunity was held not to bind a convening authority, who neither knew of it nor authorized it. Likewise, in United States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955), the promise of a subordinate did not preclude a commander from instituting prosecution. However, if an official authorized expressly or implicitly by the convening authority has promised a suspect that, in return for certain disclosures, he would not be prosecuted, we have not hesitated to enforce that promise. Thus, in Cooke v. Orser, 12 M.J. 335 (C.M.A.1982), a promise of immunity made by the staff judge advocate of the commander exercising general court-martial jurisdiction precluded prosecution of suspected espionage. Likewise, in United States v. Brown, 13 M.J. 253 (C.M.A.1982), this Court enforced an informal agreement that if the accused gave good information about drug activity, the convening authority would grant him some form of relief. There, the staff judge advocate had made the agreement; and he had been entrusted by the convening authority with that responsibility. Our conclusion was that the Government must abide by an agreement on which an accused has reasonably relied to his detriment.

In Cunningham v. Gilevich, 36 M.J. 94, 100-01 (C.M.A. 1992), the court recognized that it had applied some type of de facto immunity since Cooke, but found that the petitioners in that case had not established that the officer who offered the immunity had done so with apparent authority. In Samples v. Vest, 38 M.J. 482, 486-87 (C.M.A. 1994) the court again recognized the concept of de facto immunity, but held it was not applicable where the appellant had not shown that he had been misled.

United States v. McKeel, 63 M.J. 81, 87 (C.A.A.F. 2006), cert. denied, McKeel v. United States, 549 U.S. 1019 (2006). Interestingly McKeel was cited in Call v. Polk, 454 F. Supp. 2d 475 (W.D. NC 2006), a non-military habeas case.

The NMCCA found a “substantial basis to question the voluntariness of the appellant’s pleas.”

It appears the defense counsel did investigate the existence of an agreement

and confirmed the existence of an agreement from both the sergeant major and the battalion legal officer, but she could not ascertain the actual terms of the agreement. The sergeant major told Capt D the appellant was only provided immunity for the 1 February 2008 suspected marijuana use and possession of the false ID; the legal officer had no recollection of the terms of the agreement.6 Capt D also learned from the sergeant major that he shredded the agreement before he deployed to Iraq.

Subsequently the defense counsel

informed the appellant of what she had learned regarding the immunity agreement and advised him it would be difficult to prove its actual terms.

Providency went ahead and the usual colloquy ensued about any other agreements.

At the DuBay hearing, the appellant explained why he told the military judge there were no other agreements. He testified that on the day of trial, he asked his trial defense counsel if he should tell the judge about the immunity agreement and she advised him not to, because doing so would most likely result in his returning to the brig for “another four month[s]” or a “really long time” while the issue was further litigated and that he probably would lose. . . . When [the defense counsel] later testified, no one asked her if the appellant’s recollection of her advice was accurate, she only testified generically that she advised her client that proving the terms of the agreement would be difficult, and that ultimately he chose to accept the pretrial agreement rather than pursue any relief under the immunity agreement. She also testified that she prepared the appellant for his guilty pleas on the day of trial, but could not specifically remember what they discussed.

NMCCA takes issue with various inconsistencies with the defense counsel’s notes, knowledge of events before trial, what was testified to at the Dubay hearing, and facts adduced in the providency enquiry.

After trial the defense counsel submitted a clemency request which

specifically referenced the immunity agreement: “As stated in the enclosure, Pvt Sagona had an understanding that he would not be charged with future misconduct for drug abuse after he agreed to give information on Marines who were smoking marijuana on restriction.

Here is the nub of NMCCA’s conclusions and reasons for setting aside the findings and sentence.

The existence of the immunity agreement created a potential legal basis for the appellant to seek significant relief, had the issue been litigated at trial. The record is unclear, but it leaves an impression that the appellant’s attorney presented one of two options regarding the immunity agreement: 1) pretend the agreement never existed and get out of jail immediately pursuant to the pretrial agreement, or 2) endure a lengthy and undetermined period of confinement before he could litigate the issues presented by the immunity agreement. If, at the time of his pleas, the appellant had disclosed the existence of the agreement to the military judge, then the existence of the agreement would not necessarily have hindered the military judge from accepting the pleas as voluntary, so long as the military judge could ascertain that the appellant voluntarily waived any potential relief stemming from the immunity agreement in exchange for the protections offered in sentence limitation portion of the pretrial agreement. On the other hand, if the appellant’s decision not to pursue potential relief was influenced by some form of coercion or duress, i.e., protracted and unnecessary imprisonment, then we cannot say that his pleas were truly voluntary. Had this experienced trial judge [LtCol Robinson] received full disclosure on the record of all pertinent facts regarding the appellant’s decision, we have no doubt that he would have been the singularly most qualified person to determine the voluntariness of the appellant’s guilty pleas. Regrettably, the military judge was prevented from doing so due to the misleading information provided by the appellant and his trial defense counsel.

Interestingly the NMCCA concludes, in a footnote, that the trial counsel was unaware of all of this! How can this be? Was the issue never discussed during pretrial negotiations? Did the trial counsel not talk with the command “legal officer?” Was there a term in the PTA to waive all waivable motions? Did that come up at trial? Also, what happened in the SJA shop when they read the clemency petition and read it in conjunction with the verbatim record of trial?

A de facto promise of immunity does not automatically bar prosecution. There is a fact evaluation. In some situations a lesser remedy, such as exclusion of statements and evidence may be applied.

(Jab: had this appellant received a sub-jurisdictional punishment we are unlikely to have heard of this court-martial under the UCMJ.)

Issue: Whether the Tenth Circuit violated 28 U.S.C. § 2254(d)(1) by granting habeas relief for ineffective assistance of counsel during plea bargain negotiations to a defendant who was later convicted and sentenced in a fair trial, on the ground that the remedy the Oklahoma Court of Criminal Appeals gave to the defendant was constitutionally inadequate, given that the Supreme Court has not clearly established what remedy, if any, is appropriate for ineffective assistance of counsel in such a case. Now courtesy of the New York Times here is an article that defense counsel, trial counsel, and SJA’s may want to read. It’s a cautionary tale, or perhaps just entertaining.

Now here is a piece courtesy of Wall Street Journal:

According to a new paper published in Psychology, Public Policy, and Law, lawyers aren’t very good at predicting the outcome of their own cases. Why? Because they’re often biased in favor of their own chances. Click here for a blog post on the study from the Chronicle of Higher Education.

Here’s a link to Goodman-Delahunty, Granhag, Hartwig, and Loftus, Insightful or Wishful Thinking: Lawyers’ Ability to Predict Case Outcomes, 16 Psych., Pub. Policy & Law, 133 (2010).

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.

Title: Jones v. Williams Docket: 09-948 Issue: Whether the Tenth Circuit violated 28 U.S.C. § 2254(d)(1) by granting habeas relief for ineffective assistance of counsel during plea bargain negotiations to a defendant who was later convicted and sentenced in a fair trial, on the ground that the remedy the Oklahoma Court of Criminal Appeals gave to the defendant was constitutionally inadequate, given that the Supreme Court has not clearly established what remedy, if any, is appropriate for ineffective assistance of counsel in such a case. Opinion below (10th Circuit, rehearing denied) Petition for certiorari Brief in opposition Petitioner’s reply The relevant “facts.”

Pity Oklahoma doesn’t have the CCA’s awesome powers of de novo review.

I don’t think the defense counsel’s belief in the client’s innocence is the deciding factor, is it? The question is based on the likely evidence admissible at trial can the prosecution prove the case and get a conviction. Regardless of your own belief in the client’s innocence the weight of the likely evidence and the client’s desires come first?

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer. So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is “yes” if the letter was written as part of the plea bargaining process.

Here is a timely article from the ABA about this important topic (thanks to Sentencing Law & Policy for the link).

Ellis & Bussert, Stemming the Tide of Postconviction Waivers, 25 (1) Crim. Justice, Spring 2010, ABA.

Over the last several years, waiver of a defendant’s appellate and postconviction rights has become a standard feature of plea agreements in federal cases. While courts uphold a knowing and intelligent relinquishment of rights, these waivers are not without limits. This article suggests areas about which defense counsel should be aware in order to afford clients the greatest opportunity for postconviction relief. In particular, we explore ethical constraints on defense counsel’s ability to advise clients and to shield themselves from ineffective assistance claims, as well as constraints on prosecutors’ ability to demand such waivers or to shield themselves from prosecutorial misconduct claims.

Among their cautions about the use of waivers, they make three recommendations to defense counsel.

First, defense counsel should be assertive in seeking revisions to plea agreements that preserve a client’s claims of ineffective assistance of counsel or prosecutorial misconduct. Counsel must make clear to the government that notwithstanding a guilty plea, the client retains the right to file a motion pursuant to 28 U.S.C. § 2255 (and AEDPA) that challenges the constitutional quality of trial or appellate counsel’s representation not merely representation as it concerns counsel’s advice and performance related to entry of the guilty plea—the consideration on which courts ordinarily focus. Second, to the extent that the proposed plea agreement includes the common refrain that the “defendant also acknowledges his complete satisfaction with the representation and advice received from his undersigned attorney,” counsel should compel the government to add “though his attorney could not, and did not, advise him in this regard.” If the government balks as to either, counsel is obliged to raise the points on the record so that the issue(s) is preserved. Finally, where the foregoing steps have not been taken or the record is silent as to the same, counsel in postconviction proceedings seeking to advance an ineffective assistance of counsel claim should point out that the defendant was deprived of counsel, contrary to the protections of the Sixth Amendment, as to that portion of a plea agreement, thereby rendering that portion of the agreement unenforceable.

The piece concludes:

While we recognize that there exists a systemic interest in finality and minimizing meritless claims, the appeal and postconviction waivers that have crept into the federal plea negotiation process require diligent attention. Justice is not served by impediments to valid claims that would otherwise afford relief. Defense counsel, in particular, are obliged to voice ethical considerations that can and should prevent the government from foreclosing available avenues and to ensure that every client’s relinquishment of rights is knowing and voluntary.

If she can’t have justice for her slain soldier husband, she’d at least like a Purple Heart. New York widow Barbara Allen is battling the National Guard for withholding the military honor from her husband, who was killed in 2005 while serving in Iraq. The two men were allegedly the victims of “fragging” — killed by a disgruntled soldier under their command. But the accused soldier, Staff Sgt. Alberto Martinez, 45, was found not guilty of both murders at a military trial in 2008. Allen’s family later found out that during the investigation, Martinez had offered to plead guilty to the charges in exchange for a lifetime prison sentence instead of the death penalty. Military prosecutors rejected his plea and proceeded to trial, but a jury did not convict him. Lt. Allen’s death isn’t considered the act of an enemy combatant by the military — but his wife disagrees.

Her claim about the PTAO is consistent with what I have heard from a potential witness involved in the case.