Providence shines down or upon

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think.  You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea.  The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies.  I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted.  But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently.  Message to TC, you have a duty to your client to protect us from an errant judge.  You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.