Articles Posted in Pretrial agreements

Here is another case where a military prisoner has sought habeas corpus relief, in the Kansas District Court (the Tenth Circuit).

Valois v. Commandant, USDB

The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.

Valois challenges the amount of good conduct time (“GCT”) credit that will be administratively deducted from his sentence.

On June 30, 2006, Valois was transferred to the United States Disciplinary Barracks (“USDB”) in Fort Leavenworth, Kansas, where he is presently serving his sentence. On May 11, 2010, Valois filed a claim for administrative relief with the Commandant of the USDB, contesting the amount of good time that was being credited against his sentence. This request was denied on May 12, 2010. Valois repeated the request on May 14, 2010, and it was again denied on May 26, 2010. On June 17, 2010, Valois filed a complaint under Article 138 of the UCMJ on June 17, 2010, which was denied on August 5, 2010. He filed additional Article 138 complaints on June 8 and 28, 2011, both of which were denied. On September 12, 2012, the Air Force Court of Criminal Appeals denied his pro se Writ of Habeas Corpus without prejudice due to lack of counsel. Valois submitted a motion for reconsideration but on February 11, 2013, sought dismissal. Four days later, on February 15, 2013, Valois filed the instant petition.

In his petition, Valois asserts two arguments. First, he contends he is entitled to GCT credit of ten days rather than five days per month. Specifically, he contends that the Secretary of the Air Force has the authority to determine the award of GCT, and that Air Force Joint Instruction (“AFJI”) 31-215, which provides for GCT at the rate of ten days per month, controls. Valois argues that later amendments or modifications to AFJI 31-215 were either invalid or have expired. Second, Valois argues that changes in GCT after his conviction constitute an ex post facto violation of the Constitution.

The arguments asserted by Valois are related. First, he contends that Congress has authorized the Secretary of each military service group to establish military correctional facilities and provide regulations for their operation. From this, he reasons that the Secretary of the Air Force controls the award of GCT. Next, Valois contends that Air Force regulations, not those of the Department of Defense (“DoD”), control his GCT. He argues that DoD regulations, which purportedly amended the Air Force regulations, are not valid because they expired and were not properly activated again. Finally, based upon these arguments, Valois contends that the less generous GCT rate under the DoD regulations illegally increases his time in confinement in violation of the Ex Post Facto Clause of the United States Constitution.

The Court first examines the maze of GCT regulations that the Air Force and DoD have issued over the last 50 years. These regulations are not always uniform and their effective dates and subsequent cancellations are often difficult to discern. The Honorable Richard D. Rogers has previously explained the problem with military regulations on issues of parole and GCT:

[T]he military regulations governing parole and good time for prisoners at the USDB are difficult to locate and decipher. Piecemeal changes have been made numerous times; some are Department of Defense directives while others are Army and Air Force regulations. Some contain disorganized provisions on the same subject, some are poorly written with seeming inconsistencies, and some subjects seem not to be adequately addressed. These regulations are not in the Code of Federal Regulations or available to the court through normal research channels. Instead, the court must rely on excerpts selected by the parties and provided with the pleadings.

Young v. Nickels, 59 F. Supp.2d 1137, 1139 (D. Kan. 1999).

Like military counsel, “With some trepidation, the Court enters the military labyrinth of regulations.”  After entering and leaving that labyrinth the court denies relief.

Part of Valois’ claim is that he received IAC when taking his PTA because he was wrongly advised of his likely good time credit.  The court cites to United States v. Griffitts, No. 201000673, 2011 WL 4985719 at * 4 (N-M. Ct. Crim. App. Oct. 20, 2011)(defense counsel’s mistaken reliance on outdated Navy instruction which awarded ten days GCT credit did not lead to improvident plea and was not ineffective assistance of counsel).

Military law and practice requires that any pretrial agreement discussions be conducted between the defense, the prosecutors, and the convening authority.  The military judge is not allowed to be involved.  The military judge’s involvement is during trial when she reviews a PTA with the accused to ensure it is all transparent and that it’s terms do not offend law or significant policy considerations.  Historically, courts have been reluctant to permit agreements to incorporate terms that deprive an accused of basic fundamental rights. See e.g., United States v. Callahan, 22 C.M.R. 443 (A.B.R. 1956); United States v. Cummings, 38 C.M.R. 174, 177 (C.M.A. 1968); and United States v. Schmeltz, 1 M.J. 8 (C.M.A. 1975).  R.C.M. 705 specifically lists examples of permissible and impermissible terms in a pretrial agreement.

  • The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel.  For some odd terms the courts don’t like:
  • An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”
  • In United States v. Spriggs, 40 M.J. 158, 162 (C.M.A. 1994), the PTA provided for a suspension of confinement and punitive discharge until such time as appellant completed a sexual offender program at his own expense. Appellant experienced financial difficulties resulting from his non-pay status and was not able to complete the program. Consequently, the CA vacated his suspension and the appellant was placed in confinement. The court held the term to be fundamentally unfair as it was an “unreasonably long” period of time for the appellant to comply with the offenders program and follow-up.
  • See United States v. Dawson, 51 M.J. 411 (C.A.A.F.1999) and United states v. Pilkington, 51 M.J. 415 (C.A.A.F. 1999). Both cases stand for the proposition that post-trial agreements will be affirmed if the new agreement was entered into voluntarily and knowingly by the accused. However, it is imperative that post-trial agreements be reached at arms-length.

Now along comes one of my favorite evidence Prof’s – Colin Miller.  Recently, the New York Times published, “Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty.”

Prof Miller observes: “I can’t say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it’s the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).”

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined . . .

The point under discussion is Judge Rakoff’s piece, “Why Innocent People Plead Guilty,” from The New York Review ofBooks, November 2014.  Here’s the nub of the argument.

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. . . . [U]nlike the criminal plea bargain situation, there is no legal impediment to doing so [in civil cases]. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.



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.