Court-Martial Trial Practice Blog
The military does not have Alford pleas.
In an Alford Plea, the criminal defendant does not admit the act but admits that the prosecution could likely prove the charge. The court will pronounce the defendant guilty. The defendant may plead guilty yet not admit all the facts that comprise the crime. An Alford plea allows the defendant to plead guilty even while unable or unwilling to admit guilt. One example is a situation where the defendant has no recollection of the pertinent events due to intoxication or amnesia. A defendant making an Alford plea maintains his innocence of the offense charged. One reason for making such a plea may be to avoid being convicted on a more serious charge. Acceptance of an Alford plea is in the court’s discretion.
The military requires a person to plead not guilty or, if they plead guilty, they must engage in a detailed discussion on the record with the military judge. In that discussion, the person must give facts supporting the charge, agree that they committed the offense, and waive several constitutional rights. See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969); United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2011).
With this in mind, the Army Court of Criminal Appeals has issued an unusual Order in a case. The accused was prosecuted for premeditated murder, about which he appears to have been remorseful. It appears his counsel was able to present a possible pretrial agreement limiting confinement to 50 years (the consequences of which are detailed in Judge Wolfe’s dissenting opinion on the Order).
Finding that appellant and the convening authority could have finalized a pretrial agreement limiting appellant’s sentence to confinement to fifty-years requires a copious ration of speculation served alongside a heaping helping of inference. “A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court,” and there is no right to a pretrial agreement. North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970). Appellant’s request for a retroactive sentence assessment based on an agreement not signed would be applicable to all similar circumstances where pretrial negotiations fail to mature into a signed pretrial agreement. To provide relief in this case opens the door to other collateral challenges based on any sentence which is higher than what was proposed. We are poorly situated to determine the reasons that a pretrial agreement was not signed. Regardless of the less favorable outcome, appellant forfeited the benefit of any potential pretrial agreement in this case when he did not pursue acceptance of a pretrial agreement.
United States v. Mayo, ACCA, June 2017.
Judge Wolfe in dissent writes:
Contemporaneous pretrial records adequately demonstrate that appellant was guilty, wanted to plead guilty, and was offered a pretrial agreement for a term of years. However, appellant was so overcome by grief and remorse from killing his fiancé that—upon being informed of the requirements of pleading guilty at courtmartial—appellant rejected any pretrial agreement that would require him to go through his murderous acts in detail. Such an unusual set of facts requires a bit more explanation.
In his explanation, the judge rehearses Care and the Care inquiry, and in a sense seems to be arguing for a relook at Care. The dissenting judge wanted to address the sentence appropriateness, which the court was allowed to do under its Article 66, UCMJ, powers, and perhaps “approve” a lesser sentence than the life sentence imposed after a contested trial. He points to some recent developments that may encourage a new look at Care and possibly allow for the equivalent of an Alford plea.
Just recently, but likely too late to help appellant, Congress made the first substantive amendments to Article 45, UCMJ, since the initial passage of the UCMJ. The Article now states that a “variance from the requirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused.” National Defense Authorization Act for Fiscal Year 2017 [hereinafter FY17 NDAA], Pub. L. 114-328, § 5227 (2016) (Pleas of the accused). This mirrors the change made to Fed. R. Crim. Pro. 11(h) in 1983 which the 6th Circuit in Tunning described as “overruling” the Supreme Court’s interpretation of that rule in McCarthy. 69 F.3d at 111.
Mayo should be appealed to CAAF, and we’ll see if there’s a new view of guilty plea requirements in guilty plea cases.
I conclude this dissent with the cautionary words of Justice White, writing for the Supreme Court: “The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve.” Alford, 400 U.S. at 39.
[Update] A friend’s comment leads to another question of potential efficiency in the appellate process. At the moment there are cases reviewed on appeal to determine if they are provident. A form of military Alford plea may also cut down on this.