gavel.thumbnail.jpgThe New York Times is reporting that the Obama Administration is considering changing the law to permit prisoners at Gitmo to plead guilty to death penalty cases without need for a trial. This is apparently a reaction to the stated desires of five Gitmo prisoners to become "martyrs."

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.Skip to next paragraph

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

Although most civilian US federal and state courts permit guilty pleas in capital cases, the Uniform Code of Military Justice does not. Article 45 of the UCMJ reads as follows:

(a) If an accused after arraignment makes an 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.
(b) A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may, if permitted by regulations of the Secretary concurrence, be entered immediately whither vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty. [emphasis added]

Basically, what happens in capital cases is that the prosecution presents their case, at the resting of the prosecution case and prior to putting on a defense case, the defendant, if he chooses to do so, can change his plea to guilty. The reason behind this is that if the prosecution fails to make out a case against the defendant, the court would dismiss the charges, even if he wanted to plead guilty. This is a safeguard against coerced confessions.The UCMJ specifically prohibits the use of coerced testimony, which would include a guilty plea

Uniform Code of Military Justice art. 31(d), 10 U.S.C. § 831(d) (2000) (“No statement obtained . . . through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against [the accused] in a trial by courtmartial.”).

According to the Times article, the rationale behind changing the law (a bit ex post facto if you ask me–of course, no one did ask me) is to avoid having the defendants talk about being tortured. However, even with a guilty plea the judge is obligated to make sure that the defendant allocates to every element of the crime to which he is pleading guilty and whether such plea is voluntary and knowing and free from coercion.

So, I have to admit, I don’t get it. I don’t understand how changing a really good law, designed to prevent coerced confession and to uncover evidence of coerced confessions, will somehow paper over the fact that we already know that these Gitmo detainees were tortured.

Even at the guilty plea allocution, they would have to answer in the affirmative if they were asked if they had been coerced. A negative answer, in view of what is publicly known to everybody—including the judge who hear the plea—would be obvious perjury and the lawyer allowing it would have the ethical violation of suborning perjury. I just don’t understand how this proposed change in the law solves—-anything.

Feel free to edjamakate me in the comments.

Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.