By Lisa M. Windsor
Standing before a judge at court-martial is never easy, especially when a service member is pleading guilty to a charge. It becomes an even more daunting matter when that judge expresses skepticism over the charge to which the service member is pleading. A recent U.S. Navy-Marine Corps Court of Criminal Appeals (USNMCCA) ruling, however, provides an important reminder that judges must act as neutral arbiters during guilty pleas and cannot fish for charges they deem more appropriate.
The case, U.S. v. Dixon, involved a Marine lance corporal who in March 2010 began a 28-day absence without leave (AWOL). He also missed his unit’s deployment to Afghanistan the following month and later turned himself in. The Marine was charged with missing movement through neglect in violation of Article 87 of the Uniform Code of Military Justice (UCMJ). In a pre-trial agreement (PTA), he agreed to plead guilty to this charge, and he also pleaded guilty to a charge of AWOL in violation of Article 86.
Despite the PTA, the judge doubted the appropriateness of the Article 87 charge after he questioned the Marine during a procedure known as the providence inquiry. During the providence inquiry, a judge must advise the service member of his or her rights in entering a plea and make sure he or she understands the elements of the charged offense and the consequences of pleading guilty. The service member must then articulate the facts of the case and explain to the judge why he or she is guilty of the offense. When the judge is comfortable that the service member is pleading guilty voluntarily, without threat or coercion and not simply to gain the benefit of the plea agreement, the judge will then find the service member guilty. It is very important during this phase that the service member’s version of the events matches the offense charged. If it does not, the judge may not accept the plea.
At the providence inquiry in Dixon, the Marine said he acted neglectfully but also did not want to leave his family and friends. To the judge, these statements were contradictory and pointed toward a charge of missing movement through design, which carries a penalty double that of missing movement though neglect. Instead of refusing the plea, the judge advised the trial and defense counsel that the inquiry pointed to the greater offense and to “find a solution” to this problem. Their solution ultimately involved the lance corporal agreeing to plead guilty to the greater offense of missing movement through design. On appeal, the USNMCCA over-turned the court-martial judge’s finding of guilt on the amended greater offense opining that the trial judge abused his discretion in not accepting the original plea and abandoned his neutral stance by suggesting to the government that a greater offense was more appropriate. The judge further erred by not apprising the service member of the consequences of the amendment and giving the accused an opportunity to object.
What Service Members Need to Know:
- Military judges cannot inquire into offenses not charged or inquire into elements of offenses not charged;
- By making such inquiries, a judge could end up abandoning his or her impartiality and acting on behalf of the government by probing for a more serious offense;
- Changes to the charge sheet that amount to a different or additional offense and that prejudice the rights of an appellant are deemed major modifications and must be preferred anew, unless the right to object is specifically waived;
- Even though the Marine in this case did not object to the major change to his charge, the USNMCCA said that did not qualify as a waiver because the judge did not properly inform him about the consequences of this modification.
The USNMCCA affirmed the finding of guilt to the original charge of missing movement through neglect and declined to alter the convening authority’s approved sentence. This case illustrates why it is important for service members accused of crimes to be represented by a military law attorney who will aggressively assert their rights and not yield to the pressures of a skeptical military judge.
Lisa M. Windsor is Of Counsel with Tully Rinckey PLLC and concentrates his practice in military law and criminal defense. She can be reached at firstname.lastname@example.org. To schedule a meeting with one of Tully Rinckey PLLC’s experienced military law attorneys call 202-787-1900.