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some, the answer to this question may appear to be very simple –
if a person is guilty, he should plead Guilty and if he is not guilty,
he should plead Not Guilty. However, it is rarely that simple and
this decision can be a difficult one that requires consideration
of many complex factors. One fact a person charged with a crime
must be aware of is that the criminal justice system, in both the
military and in the civilian courts, is not perfect. A person who
is truly not guilty, can certainly be convicted, and sent to jail,
for a crime he did not commit. Sometimes a person who professes
his innocence may be facing overwhelming evidence that is clearly
enough to support a conviction. In the criminal courts of the Virginia,
that person should be apprised of an option that the military accused
does not have – the ability to enter what is known as an Alford
plea of Guilty, which is where the defendant enters a plea of Guilty,
but tells the judge he does so not because he is in fact Guilty,
but because he is concerned of the risks related to a conviction
if he pleads Not Guilty and he is entering the Guilty plea to secure
a more favorable resolution (reduced charges or lenient sentence).
Many people ask why in the world would a person plead Guilty to
a crime he did not commit - the answer is the risk factor which
is a part of our imperfect judicial system. There is no such thing
as an Alford plea in the military and any plea of Guilty must be
factually supported and entered because the accused is in fact Guilty.
When the military accused is in fact guilty, he has some options
as to how to proceed. Remember of course that even the guilty accused
has a legal and moral right to plead Not Guilty and to require the
prosecution to prove his guilt beyond a reasonable doubt. Obviously
there are significant risks with this, but unquestionably there
are many criminal trials where the prosecution simply can not prove
its case and a person who is truly guilty is acquitted. That is
how our system works - it is frequently said that it is much better
for a guilty person to be acquitted, than for an innocent person
to be convicted of a crime he did not commit. Another option is
to consider the feasibility of securing a favorable Pre-trial Agreement
(PTA). In the military, a PTA operates to set forth what offenses
the accused will enter a plea of Guilty to and upon doing so, what
consideration the Convening Authority will give to the accused for
signing the PTA. The benefit to the command for executing a PTA
can come in several different ways, to include a significant saving
of expense and manpower over a contested trial, or possibly to secure
the cooperation of the accused to testify against other suspects.
The benefit to the accused likewise can come in several different
ways, to include a dismissal of some of the charges and/or a limitation
on the sentence that can be approved.
The standard PTA in the military is a two-part document. The first
part will set forth what the agreement is as to the pleas of the
accused and any specially negotiated provisions. This part of the
PTA will be provided to the judge frequently before trial starts
and will be considered by the judge in determining whether or not
to accept the pleas of the accused. The second part is the sentencing
portion of the PTA and this will not be provided to the judge until
after sentence is announced.
Lets take a look at a hypothetical case involving a General Court-Martial
of a Second Class Petty Officer (we will refer to him as John) who
is charged with numerous offenses related to the theft and sale
of Government property and conspiracy to steal the property. In
our hypothetical, John is facing 75 years of confinement, reduction
to E-1, total forfeiture or all pay and allowances, an unlimited
fine and a Dishonorable Discharge from the US Navy if convicted
of all offenses. In the negotiation of a PTA, we will first attempt
to limit the offenses that John will have to plead Guilty to which
will necessarily result in a decrease of the maximum punishment.
Lets say in John’s case we are successful and secure an agreement
to dismiss some of the charges which reduces the maximum punishment
John is facing to 45 years. Once we have the pleas worked out, we
then focus on the sentencing limitations in an effort to reduce
exposure to confinement and to limit the level of the punitive discharge
that can be imposed. Depending upon the case, other sentencing limitations
may be sought, such as reduction limits, as well as protection from
forfeitures and/or fines. Assume that a PTA is negotiated and executed
which provides for suspension of any confinement in excess of 5
months, as well as suspension of all forfeitures and fines. Furthermore,
if a Dishonorable Discharge is imposed, it will be remitted to a
Bad Conduct Discharge. When John goes to court, assume the judge
imposes a sentence of 10 months confinement, total forfeiture of
pay and allowances, a fine of $ 3,000.00, reduction to E-1 and a
Dishonorable Discharge. In accordance with the terms of the PTA,
the Convening Authority will be obligated to suspend any confinement
in excess of 5 months, as well as the forfeitures and fine. Furthermore,
the Dishonorable Discharge will be remitted to a Bad Conduct Discharge.
Now assume a different trial result, where the judge sentenced John
to 3 months confinement and reduction to E-3. In that case, John
has “beat the PTA” and the Convening Authority can not
increase the sentence.
As you can see from this, a Pre-trial Agreement can significantly
reduce the exposure of an accused at a Court-Martial. However, in
some cases it may not be in the best interest of the accused to
enter into a PTA. The decisions to be made as to how to plead, and
whether or not to attempt to secure a PTA, must be a based upon
consideration of all of the facts and circumstances of the case.
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