pretrial agreement Tag Archives — Court-Martial Trial Practice Blog

Make it clear, get it in writing, litigate it

September 19, 2012 | The Law Office of Philip D. Cave

The NMCCA has issued an unpublished opinion in United States v. Belcher. This case has lessons for the defense and the prosecution.

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.

Two Supremes grants

January 10, 2011 | The Law Office of Philip D. Cave

Two Supreme Court grants of certiorari should be of interest to MJ practitioners. Here are links to SCOTUSBLog for the case materials.

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?

Coast Guard San Diego Bay sitrep

October 17, 2010 | The Law Office of Philip D. Cave

Here SignOn San Diego reports the unusual situation of public release of pretrial agreement “discussions.”

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.

We’ve seen this before

October 11, 2010 | The Law Office of Philip D. Cave

In a court-martial under the court-martial UCMJ setting, can a PTA bind the prosecution/convening authority to something he or she has no control over — generally the conditions of confinement. There’s a teachable moment here for the court-martial practitioner.

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.

NMCCA unpublished op. on “immunity”

October 3, 2010 | The Law Office of Philip D. Cave

United States v. Sagona, sentenced at court-martial on 8 May 2008, appeal decided 30 September 2010.

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).

Counsel’s predictions

June 8, 2010 | The Law Office of Philip D. Cave

Just the other day, alerted by SCOTUSBlog I posted Jones v. Williams as a case to watch at SCOTUS. The issue once again:

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.

SCOTUS

June 6, 2010 | The Law Office of Philip D. Cave

SCOTUSBlog has the 3 June 2010 petitions to watch at SCOTUS. Here is an interesting one.

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.”

An interesting Indiana case on 410

May 20, 2010 | The Law Office of Philip D. Cave

Prof. Colin Miller posts:

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.

Waiving appellate review

May 12, 2010 | The Law Office of Philip D. Cave

There has been quite a bit of discussion recently of waiving appellate review as part of a pretrial agreement.

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.

Martinez DP case

May 9, 2010 | The Law Office of Philip D. Cave

New York Post reports that:

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.