U.S. v. Hayes, 70 M.J. 454

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. Article 45, UCMJ, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea; specifically, if an accused after arraignment makes in irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty
2. consistent with Article 45, UCMJ, if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge who fails to do so has abused his or her discretion
3. the threshold for determining when additional inquiry is required when a matter is raised that potentially offers the accused a defense to a guilty plea is the possible defense standard; an accused is not required to present a prima facie defense before the threshold for further inquiry is met; the possible defense standard is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry pursuant to Article 45, UCMJ, and United States v. Care, 18 CMA 535, 40 CMR 247 (1969), not to determine whether the defense is available or whether members in a contested case should be given an instruction; adherence to the possible defense standard also furthers Congress’s intent behind Article 45, UCMJ, to ensure the acceptance of a guilty plea be accompanied by certain safeguards to insure the providence of the plea, including a delineation of the elements of the offense charged and an admission of factual guilt on the record
4. an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea
5. not every mitigating statement or word during a guilty plea requires further inquiry; thus, a military judge is not required to reopen a plea and inquire further where an accused raises the mere possibility of a defense
6. even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obliged to make further inquiry to resolve any apparent ambiguity or inconsistency

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea

Core Criminal Law Subjects: Defenses: Duress

1. in a guilty plea context, as a matter of law, a possible defense of duress could be raised requiring further inquiry by the military judge without the accused first presenting a prima facie case of duress
2. the defense of duress applies when the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act; the apprehension must reasonably continue throughout the commission of the act; if the accused had any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply; the immediacy of harm necessary may vary with the circumstances
3. the accused’s unsworn statement during presentencing that he stole and sold military property because of financial pressure on his mother and her threatened suicide did not raise the possibility of a duress defense with respect to his guilty pleas; among other things, in the course of his plea inquiry, the accused repeatedly disavowed that there were circumstances that forced him to take the items and he admitted that he could have avoided the misconduct; moreover, the thefts occurred over five months, nullifying the sense of immediacy the duress defense contemplates and indicating that the accused had the opportunity to avoid committing the acts without causing harm; in particular, three essential elements of duress are plainly absent based on the accused’s own factual recitation and words: the immediacy between accused’s actions and the perceived threat; the continuation of immediacy throughout the conduct in question; and the opportunity to avoid the harm threatened
4. RCM 916(h)(defense of duress) does not foreclose as a matter of law the possibility that a threat of suicide could provide the basis for a duress defense; the duress defense allows an individual to avoid liability because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present; an accused ought to be excused when he is the victim of a threat that a person of reasonable moral strength could not fairly be expected to resist; to exclude suicide from the defense would shift the analysis from that of whether a person of reasonable moral strength could resist to a mere head-counting exercise

Trial Stages: Merits: Guilty Pleas

1. Article 45, UCMJ, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea; specifically, if an accused after arraignment makes in irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty
2. consistent with Article 45, UCMJ, if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge who fails to do so has abused his or her discretion
3. the threshold for determining when additional inquiry is required when a matter is raised that potentially offers the accused a defense to a guilty plea is the possible defense standard; an accused is not required to present a prima facie defense before the threshold for further inquiry is met; the possible defense standard is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry pursuant to Article 45, UCMJ, and United States v. Care, 18 CMA 535, 40 CMR 247 (1969), not to determine whether the defense is available or whether members in a contested case should be given an instruction; adherence to the possible defense standard also furthers Congress’s intent behind Article 45, UCMJ, to ensure the acceptance of a guilty plea be accompanied by certain safeguards to insure the providence of the plea, including a delineation of the elements of the offense charged and an admission of factual guilt on the record
4. an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea
5. not every mitigating statement or word during a guilty plea requires further inquiry; thus, a military judge is not required to reopen a plea and inquire further where an accused raises the mere possibility of a defense
6. even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obliged to make further inquiry to resolve any apparent ambiguity or inconsistency

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

1. an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; an abuse of discretion occurs when there exists something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea