United States v. Chinn

2 M.J. 962, 1976 CMR LEXIS 754

Opinions

OPINION OF THE COURT

DONAHUE, Judge:

The appellant’s pretrial agreement included a waiver of investigation under Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 and, in fact, no Article 32 was undertaken. Appellant alleges that this provision renders the agreement void as against public policy. We agree.

The United States Court of Military Appeals has made it abundantly clear that “extrajudicial infringement or interference with the trial and its procedures is forbidden.” ¹ Pretrial agreements waiving the issues of speedy trial² and former jeopardy³ have likewise been condemned. Although the cited cases specifically involve waivers of rights at trial and the case sub judice involves a pretrial procedure, the same important public policy considerations are involved.⁴

The findings of guilty and the sentence are set aside. A rehearing may be ordered before a court-martial convened by the same or a different convening authority.

Judge COSTELLO concurs.

1 . United States v. Holland, 23 U.S.C.M.A. 442, 443, 50 C.M.R. 461, 462, 1 M.J. 58, 60 (1975).

2 . United States v. Cummings, 17 U.S.C.M.A. 376, 38 C.M.R. 174 (1968).

3 . United States v. Troglin, 21 U.S.C.M.A. 183, 44 C.M.R. 237 (1972).

4 . However, implicit in the waiver of an Article 32 investigation is the waiver of any motion for appropriate relief at trial in connection with the lack of an investigation.