We’ve seen this before

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.

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.