If I Have to Fight for My Life?Shouldn't I Get to Choose My Own Strategy? An Argument to Overturn the Uniform Code of Military Justice's Ban on Guilty Pleas in Capital Cases

• Author: Major Frank E. Kostik Jr.
• Pages: 242-291

242 MILITARY LAW REVIEW [Vol. 220

IF I HAVE TO FIGHT FOR MY LIFE—SHOULDN’T I GET TO

CHOOSE MY OWN STRATEGY? AN ARGUMENT TO

OVERTURN THE UNIFORM CODE OF MILITARY JUSTICE’S

BAN ON GUILTY PLEAS IN CAPITAL CASES

MAJOR FRANK E. KOSTIK JR.*

You have built up a good piece of legislation here. It

may not be completely free of the need for further

revision in the future, but, knowing the personnel of the

Committee on Armed Services, I have tremendous

confidence . . . [that] you will continue your study and

observation and develop further legislation of this kind

when needed. . . . It is also important that Congress be

ever ready to revise and improve the system in the way

best illustrated by the bill H.R. 4080 now before us.1

I. Introduction

In late 2009, the military charged then–Major (MAJ) Nidal Hasan of

killing thirteen and wounding thirty-two unarmed soldiers as they

prepared to deploy at Fort Hood, Texas.2 On August 15, 2012, Inmate

* Major Frank E. Kostik Jr., U.S. Army. Presently assigned as Senior Defense Counsel,

Region III, Fort Leavenworth, Kansas. LL.M., 2013, The Judge Advocate General’s

School, United States Army, Charlottesville, Virginia; J.D., 2004, Widener University

School of Law, Harrisburg, Pennsylvania; B.A., 2001, Mercyhurst University; Erie,

Pennsylvania. Previous assignments include Government Appellate Attorney and Trial

Counsel, United States Army Legal Services Fort Belvoir, Virginia 2010–2012; Defense

Counsel, Region III, Trial Defense Service, Fort Riley, Kansas 2009–2010, Brigade

Judge Advocate, Combat Aviation Brigade, First Infantry Division, Fort Riley, Kansas

and Contingency Operating Base Speicher, Iraq, 2007–2009; Office of the Staff Judge

Advocate, First Infantry Division, Fort Riley, Kansas 2005–2007 (Trial Counsel, 2007;

Administrative Law Attorney, 2006; Legal Assistance Attorney, 2005-2006). This article

was submitted in partial completion of the Master of Laws requirements of the 61st Judge

Advocate Officer Graduate Course.

1 Uniform Code of Military Justice, 95 CONG. REC. 5718 (1949) [hereinafter H.R. 4080

Debate], reprinted in Dep’t. of Navy, Uniform Code of Military Justice, Congressional

Floor Debate on Uniform Code of Military Justice 31–32, available at

http://www.loc.gov/

rr/frd/Military_Law/pdf/congr-floor-debate.pdf (statement of Congressman Thomas E.

Martin in support of H.R. 4080, a bill to enact and establish the Uniform Code of Military

Justice (UCMJ)).

2 See Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012); TIMES TOPICS, Nidal Malik Hasan,

http://topics.nytimes.com/top/reference/timestopics/people/h/nidal_malik_hasan/index.ht

ml (last visited June 15, 2014).

2014] UCMJ’S BAN ON GUILTY PLEAS IN CAPITAL CASES 243

Hasan attempted to plead guilty at his court-martial3 in contravention of

Article 45(b)’s prohibition on receiving pleas “to any charge or

specification alleging an offense for which the death penalty may be

adjudged.”4 The military judge denied his request, which forced the case

to trial on the merits.5 Inmate Hasan was later convicted of the charged

offenses and sentenced to death.6 In his attempt to plead guilty to the

offenses charged, Inmate Hasan joined numerous other military capital

defendants who have either attempted to plead guilty at trial or reserved

the inability to plead guilty at trial as an appellate issue warranting

reversal of the conviction.7 This example raises the question: Why does

the military justice system prohibit guilty pleas in capital cases, when a

large majority of death penalty states and the federal system permit

them?

In United States v. Matthews, the Court of Military Appeals (now the

Court of Appeals for the Armed Forces (CAAF)) ruled that the

prohibition in Article 45(b) is constitutional.8 Constitutionality of a

statute, however, should not end the analysis of whether a statute is the

best law for a particular system of justice. The military justice system is

no different and requires “continue[d] . . . study and observation” to

develop legislation as needed.9 Article 45(b)’s prohibition on guilty

pleas in capital cases presents an issue that deserves further analysis.

The statute, as drafted, rose out of frustration by convening

authorities that records of trial contained little to no information for them

to review. The lack of information made it nearly impossible for them to

3 See Kari Huus, Nidal Hasan Barred from Pleading Guilty to Murder in 2009 Fort

Hood Shooting, NBC News (Aug. 15, 2012), http://usnews.nbcnews.com/_news/2012/08/

15/13299644-nidal-hasan-barred-from-pleading-guilty-to-murder-in-2009-fort-hood-

shooting (last visited June 15, 2014).

4 UCMJ art. 45(b) (2012); see Appendix A (Article 45. Pleas of the Accused) (providing

complete text of UCMJ art. 45 (2012)).

5 See Huus, supra note 3.

6 See Billy Kenber, Nidal Hasan Sentenced to Death for Fort Hood Shooting Rampage,

WASH. Post (Aug. 28, 2013), http://www.washingtonpost.com/world/national-security/

nidal-hasan-sentenced-to-death-for-fort-hood-shooting-rampage/2013/08/28/aad28de2-

0ffa-11e3-bdf6-e4fc677d94a1_story.html (last visited June 15, 2014).

7 See generally United States v. Matthews, 16 M.J 354, 362–63 (C.M.A. 1983) (accused

attempting to plead guilty to premeditated murder at trial, then raising inability to plead

as an appellate issue); see also Brief for Appellant at 433, 466, United States v. Akbar,

No. 20050514, 2012 WL 2887230 (A. Ct. Crim. App. July 13, 2012) (on file with

author).

8 16 M.J. 354, 362-63 (C.M.A. 1983).

9 See H.R. 4080 Debate, supra note 1.

244 MILITARY LAW REVIEW [Vol. 220

determine what happened at trial and assess the degree of criminality of

the accused or if the accused was actually guilty. This review was

particularly important to the accused because it represented the only

appellate process available. Even when Congress passed the Uniform

Code of Military Justice (UCMJ), many of the protections provided to

the accused today, like a detailed providence inquiry, increased

requirements for mitigation evidence, and additional evidentiary

requirements in capital cases did not exist. Thus, a rule like Article 45(b)

that protected the accused by forcing information into the record through

a contested case made sense.

This article argues that in light of a detailed providency inquiry,10 an

increased requirement for mitigation investigations,11 and the President’s

addition of Rule for Courts-Martial (RCM) 1004,12 Article 45(b)’s

prohibition on guilty pleas in capital-eligible cases no longer serve—nor

needs to serve—as the robust protection that it once did. Therefore,

Congress should amend Article 45(b) to permit a military accused to

plead guilty in a capital-eligible offense.13 Such a change in the law

would bring the UCMJ in line with the federal code and the large

majority of states who permit guilty pleas in capital cases. In addition,

the change would provide greater latitude to military accused to focus

their efforts and strategy on simply avoiding death. A decision to plead

guilty by the accused also provides ancillary benefits to the government,

such as increased judicial economy, economic savings, and quicker and

assured closure for military units and victims’ families. This article does

not argue that Article 45(b) is unconstitutional as it exists or was an

irrational rule when enacted, only that Article 45(b) is an antiquated rule

that has been overcome by other protections for the accused and creates

needless litigation. When such situations occur in the law, common

sense and logic dictate change.

10 See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

11 See Major David D. Velloney, Balancing the Scales of Justice: Expanding Access to

Mitigation Specialists in Military Death Penalty Cases, 170 MIL. L. REV. 1, 17–26 (2001)

(arguing that United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) and United States v.

Gray, 51 M.J. 1 (C.A.A.F. 1999) are out of step with United States v. Curtis, 46 M.J. 129

(C.A.A.F. 1997), United States v. Simoy, 50 M.J. 1 (C.A.A.F. 1998), and United States v.

Murphy, 50 M.J. 4 (C.A.A.F 1998) and the legal community writ large, which tends to

support a more lenient standard in granting mitigation specialists for presentencing

ostensibly because of an increased requirement to ensure the panel hears all relevant

mitigation evidence in capital cases).

12 See MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 1004 (2012) [hereinafter

MCM].

13 UCMJ art. 45(b) (2012).