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Memorandum of Pretrial Agreement for General and Special Courts-Martial - 14134_166
stipulation  as  to  one  or  more  charges  and  specifications and  to  fulfill  such  additional  terms  or  conditions  that may be included in the agreement and that are not prohibited and (2) a promise by the CA to do one or more of the following: (a) refer the charges to a certain type of court-martial; (b) refer a capital offense as noncapital; (c) withdraw one or more charges and specifications from the court-martial; (d) have the TC present no evidence as to one or more specifications or portions thereof; and (e) take specified action on the sentence adjudged  by  the  court-martial. Execution of Agreements Pretrial agreements may be entered into in both GCMs and SPCMs. No provision exists for entering into a pretrial agreement in SCMs. Pretrial agreement negotiations may be initiated by the accused, DC, TC, SJA, and CA, or their duly authorized representatives. Either the defense or the government may propose any term or condition not prohibited by law or public policy, Government representatives negotiate with the DC unless the accused has waived the right to counsel. In GCMs, the TV works through the CA’s SJA in making his or her recommendations about the offer to the CA. However, in SPCMs, this procedure is not required if the CA has no SJA. After negotiations, if the accused elects to propose a pretrial agreement, the defense submits a written offer. All  terms,  conditions,  and  promises  between  the  parties are contained in this offer. The proposed agreement is personally signed by the accused and DC, if any. If the agreement contains any specified action on the adjudged sentence, that action will be set forth on a page separate from  the  other  portions  of  the  agreement. The CA may either accept or reject an offer of the accused  to  enter  into  a  pretrial  agreement,  or  may propose  by  a  counteroffer  any  terms  or  conditions  not prohibited  by  law  or  public  policy.  The  decision whether to accept or reject an offer is within the sole discretion  of  the  CA.  When  the  CA  has  accepted  a pretrial   agreement,   the   CA,   or   an   authorized representative such as the SJA or the TC, signs the agreement. The  accused  may  withdraw  from  a  pretrial agreement at any time. The CA may withdraw from a pretrial agreement under the following circumstances: (1)  any  time  before  the  accused  begins  performance  of promises  contained  in  the  agreement,  (2)  upon  the failure by the accused to fulfill any material promise or condition in the agreement, (3) when inquiry by the 6-13 military judge discloses a disagreement as to a material term in the agreement, or (4) if findings are set aside because a pica of guilty is held improvident on appellate review. A suggested form for such an agreement for GCMs and SPCMs is shown in figure 6-10. See also appendix A-1-h of the  JAG Manual  for an example of a pretrial agreement. You  must  modify  the  format  of  the agreement as necessary to include all the terms of the agreement made between the accused and the CA. No matters  that  are  “understood”  between  the  accused  and the  CA  should  be  omitted  from  the  written  agreement. Except in an SPCM without a military judge, no member  of  a  court-martial  may  be  informed  of  the existence of a pretrial agreement. In addition, the fact that an accused offered to enter into a pretrial agreement and any statements made by an accused in connection with that offer, whether during negotiations or during the providence inquiry, may not be disclosed to the members.  Also,  the  court  may  not  be  informed  of  any such agreement made and later rejected by the accused who has decided to plead not guilty at trial. You should use caution to prevent the court from obtaining any unofficial  knowledge  of  the  negotiation  for,  or  existence of, a pretrial agreement.   However, the military judge is authorized to examine the pretrial agreement in those cases that he or she sits with members. The military judge is not authorized to examine or inquire into that part of the agreement that states the specific sentence agreed upon by the accused and CA in those cases that the military judge hears alone (without members). The existence of a pretrial agreement does not prevent the accused  from  presenting  matter  in  mitigation  and extenuation.  Counsel  for  the  accuscd  also  has  a continuing duty, in spite of a pretrial agreement, to vigorously represent the accused before the court with respect  to  the  sentence  to  be  adjudged. Actually,  the  accused  benefits  in  two  ways  by entering into a pretrial agreement. First, if the court adjudges a greater sentence than provided for in the pretrial  agreement,  the  CA  must  reduce  the  sentence according to the terms of the agreement. However, if the court adjudges a lesser sentence than provided for in the pretrial agreement, the CA may not increase the sentence as provided for in the agreement and the accused must only serve the lesser sentence as adjudged by the court. Further information on pretrial agreements is contained in the JAG Manual.

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