Out, damned error out, I say! The year in court-martial personnel, voir dire and challenges, and pleas and pretrial agreements

Army Lawyer, May, 2005 by Deidra J. Fleming

(208) Outhier, 45 M.J. at 331. "[A]n accused servicemember cannot plead guilty and yet present testimony that reveals a defense to the charge." United States v. Clark, 28 M.J. 401,405 (C.M.A. 1989). See also United States v. Brown, No. 35837, 2004 CCA LEXIS 209 (A.F. Ct. Crim. App. Aug. 30, 2004) (unpub.) (holding that the military judge erred by failing to advise the accused on the defense of involuntary intoxication during his court-martial for the use of cocaine when the prosecutor presented witness statements during the pre-sentencing phase stating that the accused was "'too drunk' to feel any other effects of the cocaine" and where the accused, during his unsworn statement, stated he was "pretty buzzed").

(209) UCMJ art. 45(a) (2002).

(210) MCM, supra note 4, R.C.M. 910(e) Discussion; United States v. Moglia, 3 M.J. 216 (C.M.A. 1977). See also United States v. Parker, 60 M.J. 666 (N-M. Ct. Crim. App. 2004) (holding that the rejection of the accused's plea to missing movement was improper where the military judge erroneously focused on the credibility of the information the accused relied upon when the record otherwise established the accused's actual knowledge of the unit's movement).

(211) Jordan, 57 M.J. at 238 (citing United States v. Prater, 32 M.J. 433,436 (C.M.A. 1991)).

(212) See United States v. Pinero, 60 M.J. 31 (2004); United States v. Hardeman, 59 M.J. 389 (2004). See also United States v. Le, 59 M.J. 859 (Army Ct. Crim. App. 2004) (ruling the military judge erred by failing to resolve the conflict between the accused's plea of guilty to desertion and statements indicating that the accused deserted under duress); United States v. Scott, 59 M.J. 718 (Army Ct. Crim. App. 2004) (holding an AWOL plea from 16 August 2002 through November 2002 improvident because the accused signed in with his unit on 11 September 2002); United States v. Banks, No. 20021302 (Army Ct. Crim. App. Sept. 7, 2004) (unpub.) (failing to have the accused state in his own words why he failed to report to formation); United States v. Boyd, No. 20021264 (Army Ct. Crim. App. June 16, 2004) (unpub.) (reasoning the military judge erred by accepting accused's plea without explaining the inability defense); United States v. Gonzalez, No. 20020744 (Army Ct. Crim. App. July 21, 2004) (unpub.) (determining a missing movement through neglect plea was not provident where the facts conflicted as to whether the accused possessed authority to change his flight).

(213) United States v. Pinero, 60 M.J. 31 (2004); United States v. Hardeman, 59 M.J. 389 (2004).

(214) Hardeman, 59 M.J. at 389-90.

(215) Id. at 390. The accused reported to a new base on October 22, 2001. Id. The accused was required to attend mandatory base training from 22 October 2001 to 29 October 2001 prior to joining his unit. Id. At the end of the training, the accused alleged his supervisor did not give him a specific date to report to his unit and he was expecting a phone call telling him when to report. Id.

(216) Id. at 392.