PRETRIAL AGREEMENTS

What is a pretrial agreement? As the name itself indicates, a pretrial agreement is an agreement made before the trial between the accused and the CA. The agreement stipulates the maximum sentence that the CA will approve in return for a guilty plea of the accused. Actually, it is not quite that simple, as the following discussion will bear out.

Purpose

Pretrial agreements arc advantageous to both the government and the accused. By entering into an agreement with the CA, the accused knows in advance the maximum sentence that the CA will approve. On the other hand, through advanced planning, the government can effect savings in money and manpower while also effecting the expeditious administration of justice. Therefore, from the government's viewpoint, savings is the primary purpose of entering into pretrial agreements with accused persons. From the accused person's point of view, he or she has the advantage of knowing beforehand what his or her maximum sentence will be.

This is true provided the accused is in fact guilty and desires to plead guilty.

A pretrial agreement may include (1) a promise by the accused to plead guilty to or to enter a confessional

Figure 6-9.-General court-martial amending order permanently removing an officer member from a previously established court and replacing that member with a new officer member. stipulation as to one or more charges and specifications and to fulfill such additional terms or conditions that may be included in the agreement and that are not prohibited and (2) a promise by the CA to do one or more of the following: (a) refer the charges to a certain type of court-martial; (b) refer a capital offense as noncapital; (c) withdraw one or more charges and specifications from the court-martial; (d) have the TC present no evidence as to one or more specifications or portions thereof; and (e) take specified action on the sentence adjudged by the court-martial.

Execution of Agreements

Pretrial agreements may be entered into in both GCMs and SPCMs. No provision exists for entering into a pretrial agreement in SCMs. Pretrial agreement negotiations may be initiated by the accused, DC, TC, SJA, and CA, or their duly authorized representatives. Either the defense or the government may propose any term or condition not prohibited by law or public policy, Government representatives negotiate with the DC unless the accused has waived the right to counsel. In GCMs, the TV works through the CA's SJA in making his or her recommendations about the offer to the CA. However, in SPCMs, this procedure is not required if the CA has no SJA.

After negotiations, if the accused elects to propose a pretrial agreement, the defense submits a written offer. All terms, conditions, and promises between the parties are contained in this offer. The proposed agreement is personally signed by the accused and DC, if any. If the agreement contains any specified action on the adjudged sentence, that action will be set forth on a page separate from the other portions of the agreement.

The CA may either accept or reject an offer of the accused to enter into a pretrial agreement, or may propose by a counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the CA. When the CA has accepted a pretrial agreement, the CA, or an authorized representative such as the SJA or the TC, signs the agreement.

The accused may withdraw from a pretrial agreement at any time. The CA may withdraw from a pretrial agreement under the following circumstances: (1) any time before the accused begins performance of promises contained in the agreement, (2) upon the failure by the accused to fulfill any material promise or condition in the agreement, (3) when inquiry by the military judge discloses a disagreement as to a material term in the agreement, or (4) if findings are set aside because a pica of guilty is held improvident on appellate review.

A suggested form for such an agreement for GCMs and SPCMs is shown in figure 6-10. See also appendix A-1-h of the JAG Manual for an example of a pretrial _agreement. You must modify the format of the agreement as necessary to include all the terms of the agreement made between the accused and the CA. No matters that are "understood" between the accused and the CA should be omitted from the written agreement.

Except in an SPCM without a military judge, no member of a court-martial may be informed of the existence of a pretrial agreement. In addition, the fact that an accused offered to enter into a pretrial agreement and any statements made by an accused in connection with that offer, whether during negotiations or during the providence inquiry, may not be disclosed to the members. Also, the court may not be informed of any such agreement made and later rejected by the accused who has decided to plead not guilty at trial. You should use caution to prevent the court from obtaining any unofficial knowledge of the negotiation for, or existence of, a pretrial agreement. However, the military judge is authorized to examine the pretrial agreement in those cases that he or she sits with members. The military judge is not authorized to examine or inquire into that part of the agreement that states the specific sentence agreed upon by the accused and CA in those cases that the military judge hears alone (without members). The existence of a pretrial agreement does not prevent the accused from presenting matter in mitigation and extenuation. Counsel for the accuscd also has a continuing duty, in spite of a pretrial agreement, to vigorously represent the accused before the court with respect to the sentence to be adjudged.

Actually, the accused benefits in two ways by entering into a pretrial agreement. First, if the court adjudges a greater sentence than provided for in the pretrial agreement, the CA must reduce the sentence according to the terms of the agreement. However, if the court adjudges a lesser sentence than provided for in the pretrial agreement, the CA may not increase the sentence as provided for in the agreement and the accused must only serve the lesser sentence as adjudged by the court. Further information on pretrial agreements is contained in the JAG Manual.

Figure 6-10.-Memorandum of pretrial agreement for general and special courts-martial.

Figure 6-10.-Memorandum of pretrial agreement for general and special courts-martial-Continued.