Issue Should Be Case Dispositive
The motion or issue should be case dispositive (Analysis R.C.M. 910):
- But note, only the Air Force requires that the issue be case dispositive. (See AFI 51-201, para 8.3).
- Practice Tip: where a conditional guilty plea is NOT case dispositive as to either the issue preserved for appeal or to all of the charges in a case, the military judge should address as part of the providence inquiry the understanding that the accused and the parties as to the result of the issue prevailing on appeal.
- Additionally, even if the conditional plea issue is not case dispositive, it might be best to narrowly tailor the conditional plea.
- United States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003). Accused convicted of involuntary manslaughter and various other offenses arising from his injection of a fellow soldier with a fatal dose of heroin. Accused entered into a pretrial agreement that permitted him to enter a conditional plea pursuant to RCM 910(a)(2) that preserved his “right to appeal all adverse determinations resulting from pretrial motions.” At trial, accused moved to dismiss all charges due to improper use of immunized testimony and evidence derived from that immunized testimony in violation of Kastigar v. United States , 406 U.S. 441 (1972). Although the CAAF dismissed most of the charges and specifications due to the Kastigar violation, accused was permitted to withdraw his plea to those remaining offenses which were not directly tainted by that violation, as the violation caused or played a substantial role in the GCM referral of those offenses. In so doing, CAAF noted that although military practice, unlike its federal civilian counterpart, does not limit conditional pleas to issues that are dispositive, there should be “cautious use of the conditional plea when the decision on appeal will not dispose of the case.” See also United States v. Proctor , 58 M.J. 792 (A.F. Ct. Crim. App. 2003)