I don’t remember

The ACCA has issued an unpublished opinion in United States v. Barnes.

     We all of us have dealt with the client who wants to – and should – plead guilty to some offenses, but he tells you he was so drunk at the time he remembers nothing, or at least very little.  Now what, can he be provident.

The basic answer is yes.  We have the general principle:

 An accused need not have personal knowledge or recollection of all the facts he admits, and may accept what others say as true. United States v. Penister, 25 M.J. 148 (C.M.A. 1987); United States v. Luebs, 20 U.S.C.M.A. 475, 43 C.M.R. 315 (1971); United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971).

United States v. Thomas, 45 M.J. 661, 663, n.2 (A. Ct. Crim. App. 1997).

Then we get to alcohol.

An accused’s inability to recall the facts underlying his offense(s) does not preclude his guilty plea from being provident if he is personally convinced of his guilt based upon an assessment of the government’s evidence against him.  See United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977).

As indicated in Luebs and Butler, personal awareness is not a prerequisite for a plea of guilty, but, rather, an inquiry must be made to ascertain if an accused is convinced of his own guilt. Such a conviction, a person’s inability to remember misconduct constituting the offense charged “does not, by itself, negate the existence of any essential element of the offense.”  A guilty plea may be predicated on an accused’s assessment of the Government’s evidence against himUnited States v. Wiles, 30 M.J. 1097, 1100 (N.M.C.M.R. 1989).

Usually, the appellant’s elimination of such doubt is accomplished by resort to the statements of witnesses or victims to his offense(s). Absent reasons to challenge those facts, the accused may properly rely upon them to providently plead guilty.

Now change the lack of memory as due to amnesia – same answer – yes – if . . .

In Barnes that is the issue, and it is resolved in the same way as alcohol or any other claim that the accused does not remember.  In this case Barnes told the judge he couldn’t remember – due to amnesia – so the judge refused to accept his pleas.  On appeal the ACCA tells us the judge should have accepted the plea on the facts of the case and reviews the rules for amnesia as it affects a guilty plea.

As this court stated in United States v. Axelson []:

 As long as amnesia does “not preclude him from intelligently cooperating in his defense or taking the stand on his own behalf . . . [and] his amnesic condition [does not] impair[] his ability to rationally examine and assess the strength of the [g]overnment’s evidence against him,” an accused may knowingly and voluntarily plead guilty.

65 M.J. 501, 511 (Army Ct. Crim. App. 2007) (quoting United States v. Barreto, 57 M.J. 127, 130 (C.A.A.F. 2002)). This is true even for specific intent crimes, such as larceny. See Penister, 25 M.J. at 152 (citing Luebs, 20 U.S.C.M.A. 475, 43 C.M.R. 315; United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971)).

Barnes is a tough case.  See footnote 3.

 We nonetheless commend the military judge for conducting a thorough, lengthy, and detailed providence inquiry. We also recognize, as our superior court did in Penister: “In light of this Court’s opinions emphasizing this responsibility [to ensure a plea is provident], it is understandable that a judge may err on the side of caution and not accept a guilty plea when there is any question as to its providence.” 25 M.J. at 152.

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