U.S. v. Jones, 69 M.J. 294

First Principles: Constitutional Matters: Right to Present a Defense

1. a military judge’s denial of an accused’s request to review the government’s evidence of child pornography against him prior to and during his providence inquiry did not violate the accused’s Sixth Amendment to make a defense because the accused did not seek to review the evidence to prepare a defense; the accused retained at all times the right to withdraw from the pretrial agreement, plead not guilty, and require the government to prove the offenses against him; the accused sought to review the evidence of child pornography to assist him in pleading guilty, and not to assist him in his defense

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. during a guilty plea inquiry the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it; in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record

Military Justice Personnel: Military Judge: General Powers

1. a military judge’s denial of an accused’s request to review the government’s evidence of child pornography against him prior to and during his providence inquiry did not violate the accused’s Sixth Amendment to make a defense because the accused did not seek to review the evidence to prepare a defense; the accused retained at all times the right to withdraw from the pretrial agreement, plead not guilty, and require the government to prove the offenses against him; the accused sought to review the evidence of child pornography to assist him in pleading guilty, and not to assist him in his defense

Military Justice Personnel: Military Judge: Discretion

1. in accordance with RCM 701(g)(1), the military judge may specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just; thus, it could be within the military judge’s discretion to deny a mid-providence request to stop the trial for an accused to review evidence
2. a military judge abused his discretion when he prohibited a pretrial review of evidence of receipt of child pornography on the scant rationale that “it is what it is,” where both the government and defense had agreed to such a review, and there was no argument that the scheduled pretrial review would have interfered in the trial proceedings

Trial Stages: Pretrial: Discovery

1. Article 46, UCMJ, requires that the trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe; Article 46, UCMJ, is implemented through RCM 701, and RCM 701(a)(2)(A) provides that after service of charges, upon request of the defense, the government shall permit the defense to inspect any books, papers, documents, and photographs which are within the possession, custody, or control of military authorities, and which were obtained from or belong to the accused
2. in accordance with RCM 701(g)(1), the military judge may specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just; thus, it could be within the military judge’s discretion to deny a mid-providence request to stop the trial for an accused to review evidence
3. a military judge abused his discretion when he prohibited a pretrial review of evidence of receipt of child pornography on the scant rationale that “it is what it is,” where both the government and defense had agreed to such a review, and there was no argument that the scheduled pretrial review would have interfered in the trial proceedings

Trial Stages: Merits: Guilty Pleas

1. a military judge’s denial of an accused’s request to review the government’s evidence of child pornography against him prior to and during his providence inquiry did not violate the accused’s Sixth Amendment to make a defense because the accused did not seek to review the evidence to prepare a defense; the accused retained at all times the right to withdraw from the pretrial agreement, plead not guilty, and require the government to prove the offenses against him; the accused sought to review the evidence of child pornography to assist him in pleading guilty, and not to assist him in his defense
2. in accordance with RCM 701(g)(1), the military judge may specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just; thus, it could be within the military judge’s discretion to deny a mid-providence request to stop the trial for an accused to review evidence
3. an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offenses to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case
4. an unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law
5. appellant’s unconditional guilty plea to receiving child pornography waived any issues related to the military judge’s denial of his pretrial and mid-providence requests to view the child pornography, where the denial neither implicated due process rights nor resulted in the loss of appellant’s pretrial agreement
6. during a guilty plea inquiry the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it; in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record
7. a valid guilty plea requires an accused to admit his guilt and articulate those facts that objectively establish his guilt; an accused must be convinced of, and able to describe all the facts necessary to establish guilt; if an accused is personally convinced of his guilt based upon an assessment of the government’s evidence, his inability to recall the specific facts underlying his offense without assistance does not preclude his guilty plea from being provident; reliance on information provided in the stipulation of fact or by defense counsel does not raise a substantial basis in law or fact to question the plea
8. in this case, the providence inquiry provided a sufficient factual basis for the military judge to accept appellant’s guilty plea to receiving child pornography, where (1) the detailed stipulation of fact described how appellant searched for, accessed, viewed, and saved the pornographic images, and why he believed the images depicted children, ranging from ten to seventeen, some in lascivious poses, and some of which included girls performing a sexual act with an adult, (2) appellant testified that he had read the stipulation and that everything contained in the stipulation was the truth, and (3) appellant’s statements during the providence inquiry were consistent with the stipulation of fact, raised no matters inconsistent with his guilty pleas, demonstrated that he was convinced of his guilt, and he was able to describe all the facts necessary to establish guilt, including adequate descriptions of the pornographic images at issue; no substantial basis in law or fact was raised for the military judge to reject the plea

Trial Stages: Merits: Trial Procedures › Generally

1. it is better practice for the substance of an RCM 802 conference to be placed on the record at the next Article 39(a), UCMJ

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling on a discovery request for an abuse of discretion
2. an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion

Trial Stages: Appeals: Waiver

1. an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offenses to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case
2. an unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law
3. appellant’s unconditional guilty plea to receiving child pornography waived any issues related to the military judge’s denial of his pretrial and mid-providence requests to view the child pornography, where the denial neither implicated due process rights nor resulted in the loss of appellant’s pretrial agreement