Let's Make a Deal! The Development of Pretrial Agreements in Military Criminal Justice Practice

• Author: Major Mary M. Foreman
• Pages: 02

2001] DEVELOPMENT OF PRETRIAL AGREEMENTS 53

LET'S MAKE A DEAL! THE DEVELOPMENT OF PRETRIAL AGREEMENTS IN MILITARY CRIMINAL JUSTICE PRACTICE

MAJOR MARY M. FOREMAN1

I. Introduction

Pretrial agreements are a part of every trial advocate's practice; in fact, most new trial and defense counsel begin their trial experience with guilty plea cases involving pretrial agreements before moving on to contested cases. Now specifically authorized by Rule for Courts-Martial (RCM) 705,2 pretrial agreements have not always been a codified or accepted practice and, despite the provisions of RCM 705, remain a constant source of appellate litigation. What we think of now as the law concerning pretrial agreements evolved slowly since the enactment of the Uniform Code of Military Justice (UCMJ);3 not until 1984 was it made part of the Manual for Courts-Martial as RCM 705. Most of what counsel know today as the military judge's "script" for taking a guilty plea as part of a pretrial agreement also evolved over many years of litigation; not until 1982 was it formalized in the Military Judges' Benchbook.4

While pretrial agreements usually involve a guilty plea, they may also simply involve waiver of certain trial rights, such as the right to trial by members or the right to challenge the admissibility of certain evidence.

The rights that an accused might offer to waive are not limited to rights that are exercised at trial;5 further, a pretrial agreement does not have to be initiated prior to trial but may be negotiated while the trial is in progress.6

Rule for Courts-Martial 705,7 which both authorizes and governs the terms of pretrial agreements, provides that-as part of an agreement with the convening authority-an accused may offer to plead guilty, to enter a confessional stipulation, and to fulfill other terms and conditions not otherwise prohibited by that rule.8 Convening authorities, in return, may promise to refer the charges to a certain level of court-martial, to refer a capital offense as non-capital, to withdraw charges or specifications, to direct the trial counsel to present no evidence on one or more specifications, and to take specified action on the adjudged sentence.9 The agreement must be reduced to writing10 and must contain all of the agreements between the parties.11 Rule for Courts-Martial 705 also contains a non-exclusive list of prohibited terms or conditions, which will be addressed later in this article.

The purpose of this article is to examine the evolution of the pretrial agreement, with particular focus on the cases from which emerged the present law regarding pretrial agreements. It examines the authority for pretrial agreements, the military judge's role in ensuring compliance with the laws governing pretrial agreements, permissible and prohibited terms of agreements, issues surrounding specific performance of agreements, and post-trial renegotiation of agreements.

II. Background

Pretrial agreements have been used in courts-martial since 1953 and initially developed informally as a matter of trial practice, with no independent legislative or judicial authority. In a letter to staff judge advocates, Major General (MG) Shaw, Acting The Judge Advocate General of the Army, encouraged staff judge advocates to use pretrial agreements for

speedier disposition of cases. At the same time, he urged caution in the use of such agreements,

exhort[ing] all persons concerned with the administration of military justice to guard carefully every right to which an accused might be entitled, saying: "It would be better to free an offender completely, however guilty he may be, than to tolerate anything smacking of bad faith on the part of the government."12

Senior Judge Thomas of the Army Court of Military Review (ACMR) offered the following historical perspective on MG Shaw's letter and its "sanction" of pretrial agreements:

An historical view of the Army's guilty plea program aids in understanding the nature and purpose of the negotiated pretrial agreement. Prior to 1953, less than 10% of accused in Army courts-martial entered pleas of guilty to all charges and specifications. In federal district courts, at that time, over 90% of the defendants plead guilty. Confronted with this disparity, the Acting Judge Advocate General dispatched a letter on 23 April 1953 to Judge Advocates, encouraging them to initiate a guilty plea program within their commands. . . . In May of 1957, The Judge Advocate General set forth additional guidelines. One of these provisions was: "3. The agreement, if made, must be made in writing, unambiguous, and contain no provision circumscribing the rights of an accused."13

In one of the first military appellate cases involving pretrial agreements, United States v. Callahan,14 the Army Board of Review (ABR) reassessed the sentence of an accused whose pretrial agreement was conditioned, at least in part, on waiver of his right to present matters in extenuation and mitigation. The ABR noted that it was not their "purpose to assume," nor was it their holding, "that such procedure is other than legal, proper, and under appropriate circumstances, highly desirable."15 While not expressly approving or disapproving the use of pretrial agreements, this language reflected an initial uneasiness over pretrial agreements that continued through the next few decades. This case also highlighted the

intention of reviewing authorities to carefully scrutinize the explicit or implicit waiver of an accused's rights pursuant to a pretrial agreement.

In the following year, the Court of Military Appeals (COMA) expressly approved the use of pretrial agreements in United States v. Allen,16 but cautioned against allowing such a practice to "transform the trial into an empty ritual."17 In United States v. Watkins,18 the court acknowledged the benefits that would accrue to an accused who entered into a pretrial agreement:

In the military service, a practice has been developed which permits an accused to initiate proceedings for leniency in the event that he enters a plea of guilty. This consists of an overture to the convening authority to set the maximum sentence he will affirm if a plea of guilty is entered. A reading of many records in which pleas of guilty have been entered has established that this is a salutary procedure for an accused . . . . The procedure offers the accused a chance to make certain that his sentence will not exceed fixed limits and yet leaves him unbridled in the presentation of extenuation and mitigation evidence at the trial . . . . The arrangement with the convening authority cannot help but benefit the accused for it reduces his punishment if a guilty plea is entered from the permissible maximum set by law.19

In Watkins, the appellant challenged the acceptance of his plea of guilty to bribery, alleging that his answers to the law officer during the taking of the plea raised the defense of entrapment. Chief Judge Quinn, one of the two judges in the majority that found that the plea was provident, reached his decision reluctantly, noting that "[t]he negotiated plea program is not quite as salutory as the principal opinion makes it out to be."20

Judge Ferguson dissented, noting that he would have rejected the plea, and expressing the following concern about the "negotiated guilty plea program:"

Too many records come before us with multiplicious charges, inconsistencies between the plea and the accused's statements, and minimal presentation of matters in extenuation and mitig

tion to merit the conclusion that the program is entirely advantageous. Indeed, this case reflects one of the evils arising from that very arrangement."21

Judge Ferguson's concerns were realized in later cases that ultimately became the cornerstone of the law surrounding pretrial agreements as we know it today.

III. Oversight of the Agreement

Two cases from the late 1950's typify the uneasiness with which military appellate courts have historically regarded pretrial agreements. In 1957, Private First Class (PFC) Withey pleaded guilty at a general court-martial to wrongfully possessing three marijuana cigarettes. Before his court-martial closed to deliberate on the sentence, the president of the court asked the law officer if the accused understood the effect of his guilty plea and if he was aware of the maximum sentence that the court could adjudge as a result of his plea. After informing the president that the accused did understand the effect of his plea and the maximum punishment authorized, the law officer added that the accused had pleaded guilty pursuant to a prior agreement with the convening authority. The law officer did not disclose the terms of the agreement, but reminded the members of their duty to adjudge a sentence they believed was fair and just. When the law officer asked the president if that information alleviated the court's concerns, the president of the court replied: "No, it aggravates it. I see absolutely no purpose in having a court-martial if you have predetermined a sentence for the accused."22 After the court was advised of the maximum confinement sentence of five years, the defense counsel failed to present any matters or argument in extenuation or mitigation, and the court sentenced PFC Withey to three years' confinement.23

That same year, Private Welker pleaded guilty to multiple offenses. As in Withey, the defense presented no evidence in extenuation and mitigation and made no argument on the sentence. After being informed by the law officer that the maximum punishment included confinement at hard labor for ten years and seven months, the court deliberated for five minutes and sentenced the accused to a dishonorable discharge, total fo

feitures, and the maximum authorized confinement.24 On appeal, the COMA noted two facts of particular concern: first, the accused's plea of guilty to one of the charges was "patently inconsistent with the stipulation as to the 'facts;'"25 and second, "the...