Navy-Marine Corps Court of Criminal Appeals

Substantial assistance letters

In Nina, the defense sought a substantial assistance letter for a "nominal" sentence reduction. For various reasons, the TC decided not to submit such a letter, and the MJ, in a post-trial hearing, found no problem with that. On appeal, NMCCA was au fait with this. The issue is presented as one of alleged unlawful influence by the STC. Was the denial an independent decision of the TC, or was he directed to do that by the STC?

At a post-trial Article 39(a), UCMJ, hearing, the military judge denied the motion. In his ruling, the military judge found that neither trial counsel nor Maj Alpha fully understood the rules applicable to substantial assistance letters. He also found that trial counsel’s responses to the civilian defense counsel had led the latter to believe trial counsel supported the request when, in fact, trial counsel had not made a decision to do so. Furthermore, the military judge found that trial counsel’s and Maj Alpha’s “actions and inactions in communicating with the [civilian defense counsel] exacerbated the misunderstanding in this case.”

R.C.M. 1109(e)(2) states:

A convening authority may reduce the sentence of an accused under this subsection only upon the recommendation of trial counsel who prosecuted the accused . . . The recommendation of trial counsel is the decision of trial counsel alone. No person may direct trial counsel to make or not make such a recommendation. 

NMCCA's analysis tracks the MJ and concludes that the TC was unfamiliar with SALs and was seeking advice and traing and that there was no "direction" from the STC on what to do. At the post-trial hearing the TC testified that, “At no point did I, in my capacity as trial counsel, support a substantial assistance letter in this case.”

NMCCA did note that the communications between TC, STC, and CDC "created an appearance that R.C.M. 1109(e)(2) was violated when in reality it was not."

​Kudos to the defense for raising the issue!

Kudos to TC for asking for help. Although it appears on these facts that the better COA was to go with first instincts and not provide the letter; thus avoiding a legal issue.

NMCCA leaves for another day that, "Given the unique role of supervisory trial counsel, we leave open the question of whether supervisory trial counsel fall within R.C.M 1109(e)(2)‘s term “trial counsel who prosecuted the accused” even when not specifically detailed to the case."

Is the STC, similar to SDC, similar to a AUSA's supervisor, really in a unique role? Wouldn't it be unique if no USA, DA, Commonwealth Attorney, State's Attorney office had no heirarchy of experienced counsel? Shirley, every well organized and run office has to have seasoned and experienced persons to train and supervise, etc., etc., etc.?​

Isn't there a bright-line rule here? 

Only CDC and SVC/VLC is required to submit a NOA when retained, unlike federal district court where each AUSA has to submit a NOA for each case. You might say that once counsel start communicating with the MJ and then announce their detailing at arraignment there is a NOA--fair enough. But it's unusual for the STC to appear on the record and have to announce having detailed themselves to the case.

​The rules of court could require all counsel to file a NOA making it straight-forward to determine who is the prosecutor under 1109. Or you can stay with the current practice. Either way the STC is not the TC in the case. The fact that a TC might consult the STC doesn't make that person a TC in the case. If that were true, then every SDC would technically be a DC in the case, as might a CMJ be an MJ in the case?

"Substantial assistance" has always been a feature of courts-martial; anyone who has been a TC/STC, DC/SDC, or SJA knows that. But only lately has the process been formalized into published rules. In the past, any assistance was (1) factored into PTA negotiations, (2) might arise in a post-trial clemency request, or (3) might be raised by the SJA when working on a clemency request that does not talk about any past or future assistance.

How DoD goes about proposing Rules or legislative change lacks transparency. (Compare how the Federal Rules Advisory Committee and Congress go about rule making.) However, we should assume the intent was to adopt some of the practices found in federal courts for substantial assistance sentence reductions. Although dated, see Maxfield & Kramer, Substantial Assistance: An Empircal Yardstick Gauging Equityin Current Federal Policy & Practice, USSC, January 1998; Sec. 5K1.1., USSC Guidelines (this sentence departure mechanism was first adopted in 1987).

So, perhaps one way to better regulate the practice is to require any substantial assistance requests be presented to the military judge (before the entry of judgment)? Both parties present written arguments and the military judge then is authorized to give additional confinement credit. At that point, who cares how the government came to its position on substantial assistance.

Or, why not remove the "offending" language and style the memorandum as a Prosecution Substantial Assistance Letter. That approach incorporates reality.

Again, kudos to the defense for thoughtful issue spotting and litigating, but is UI the wrong issue? Could the real issue be one of abuse of discretion? If raised on appeal, the appellate courts are familiar with the abuse of discretion standard and have analogous cases to draw from.

Cheers.