United States v. Witherspoon

This case involves a clause in a pretrial agreement similar to that found in United States v. Cross, 19 M.J. 973 (ACMR 1985). Although I disagree with my brothers’ conclusion that the clause does not violate public policy, I find the error harmless in this case.

Appellant’s evidence and argument clearly were calculated to avoid a punitive discharge. Despite the improper tendency of the clause to chill the exercise of appellant’s rights during the sentencing proceedings, the clause did not have that effect in this case. I therefore join my brothers in affirming the findings of guilty and the…