U.S. v. Edwards, 58 M.J. 49

Trial Stages: Merits: Pretrial Agreements

1. any provisions of a pretrial agreement that inhibit the providence inquiry or inquiry into the pretrial agreement would not be appropriate
2. to the extent that a term in a pretrial agreement violates public policy, it will be stricken from the pretrial agreement and not enforced; under those circumstances, public policy prohibits the accused from waiving the underlying right or privilege as part of the pretrial agreement; in turn, if the provision is not contrary to public policy or R.C.M. 705, an accused may waive the underlying right if that waiver is knowingly and voluntarily executed
3. ("A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of ... the right to complete sentencing proceedings.") does not prohibit an accused from waiving his right to notify the court of the circumstances surrounding a Government interrogation of him conducted without notice to his defense counsel)
4. R.C.M. 705 clearly provides that acceptance of the pretrial agreement is solely within the discretion of the convening authority; the convening authority is neither bound by the initial discussions between the Government and the defense counsel nor estopped from changing his position on the proposed agreement

Trial Stages: Sentence and Punishment: Unsworn Statements

1. the right to make an unsworn statement is not unlimited; R.C.M. 1001(c)(2)(A) provides that an unsworn statement may be made "in extenuation, in mitigation, or to rebut matters presented by the prosecution, or for all three purposes whether or not the accused testified prior to findings"; the fact that an accused was interrogated outside the presence of counsel, even if not justified or excusable, does not serve to "explain the circumstances" of the offense, tend to "lessen the punishment to be adjudged," or rebut anything presented by the prosecution; voluntarily waiving the right to raise this issue in an unsworn statement does not deprive an accused of a "complete sentencing proceeding"