Thursday, May 05, 2005

England, Graner, and Military Justice

It seems a military judge has thrown out PFC Lynndie England’s guilty plea. This came after the defense called former Sgt. Charles Graner, who is serving a 10 year sentence for the same conduct at Abu Ghraib prison, as a sentencing witness. After Graner contradicted England’s statements on one of the conspiracy charges, the military judge had no choice but to enter a plea of not guilty for PFC England.

In a military court-martial, the judge must conduct a lengthy inquiry to see if a guilty plea is “provident.” Usually, the guilty plea is part of a plea bargain with the prosecution. The main selling points to the prosecution are typically the certainty of a conviction, a stipulation of fact that makes the crime sound as serious as possible, an agreement to forgo a panel (jury), and a limitation of the number of witnesses. Once the providence inquiry begins, it is to the advantage of both the prosecution and defense for the accused not to claim actual innocence. In order for the plea deal to be acceptable to the judge, the accused can not contradict the stipulation of fact or the elements of the crime. So both sides of the aisle are rooting for the plea to be provident. The military judge has to be so careful that it almost sounds like he/she is trying to talk the accused out of pleading guilty.

There are always surprises, including a few with my own criminal clients. But a little clarification and a timely recess from the providence inquiry are usually enough to sort things out. This is also true in non-military cases, as evidenced by the drama surrounding the on-again, off-again guilty plea of Minnesota attorney Win Borden.

After a court-martial guilty plea is deemed provident, the sentencing hearing begins. The plea deal is usually for a cap on the potential sentence, but the result of the sentencing hearing could actually be less than the cap. Often, the defense case is like an episode of This is Your Life, with live and written testimony from every friend, relative, preacher, or teacher with something nice to say about some aspect of the accused's life. The sentencing witnesses are not supposed to say anything that contradicts the admission of guilt, but if Mom says her son is a good boy who wouldn’t do something like this, it is typically not enough to bust providence.

Which is why the rationale for calling Charles Graner as a witness is so confusing. There is no shame in having providence problems, as all defense attorneys have faced this at one time or another. But Graner clearly has an axe to grind when offering evidence of extenuation about the crime. If he is only offering mitigation evidence to evoke sympathy for England, the purity of their story is somewhat clouded by the fact that he was a non-commissioned officer in England’s chain of command when they reputedly, um, became intimate. It is unclear whether Graner was granted immunity for his testimony, or if this was one last gift for his paramour.

Finally, to see just how careful the military justice system is about providence inquiries, check out this excerpt from the Military Judge’s Benchbook. It is merely a portion of a script that goes on for several pages:

MJ: ___________, have you had enough time and opportunity to discuss this case with your defense counsel?

ACC: (Responds.)

MJ: ___________, have you, in fact, consulted fully with your defense counsel and received the full benefit of (his) (her) (their) advice?

ACC: (Responds.)

MJ: Are you satisfied that your defense counsel’s advice is in your best interest?

ACC: (Responds.)

MJ: And are you satisfied with your defense counsel?

ACC: (Responds.)

MJ: Are you pleading guilty voluntarily and of your own free will?

ACC: (Responds.)

MJ: Has anyone made any threat or tried in any way to force you to plead guilty?

ACC: (Responds.)

MJ: Do you have any questions as to the meaning and effect of a plea of guilty?

ACC: (Responds.)

MJ: Do you fully understand the meaning and effect of your plea of guilty?

ACC: (Responds.)

MJ: Do you understand that even though you believe you are guilty, you have the legal and moral right to plead not guilty and to place upon the government the burden of proving your guilt beyond a reasonable doubt?

ACC: (Responds.)

MJ: Take a moment now and consult again with your defense counsel, then tell me whether you still want to plead guilty?

(Pause.) Do you still want to plead guilty?

ACC: (Responds.)


Blogger Conservation Terms said...

Interesting. Pleading guilty. I thought most people wanted to plead not guilty.

May 05, 2005 10:08 AM  

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