Transcript | Court colloquy proposed plea by substitution and exceptions, November 27, 2012

US v. Pfc. Manning is being conducted in de facto secrecy. For more information on the lack of public and press access to United States v. Pfc. Manning, visit the Center for Constitutional Rights, which filed a petition requesting the Army Court of Criminal Appeals (ACCA) "to order the Judge to grant the public and press access to the government's motion papers, the court's own orders, and transcripts of proceedings, none of which have been made public to date."

This portion of a transcript was taken by hand from the public gallery of the Court room at Fort Meade, Maryland on November 27, 2012. It, therefore, may contain omissions or errors. This is a rush transcript.

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Lind (Judge): The defense had entered into a proposed plea by exceptions and substitutions. Court ordered the Government [to file] the Government's position on whether those LIO were appropriate or different offenses.

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Also Court asked the Government for the Convening Authority's position...if it supported a conditional plea [if they accept that would] waive the Speedy Trial [litigation]

Government response?

Fein (Prosecution): [Government's position] on the conditional plea was not to support... [Defense did not oppose]... ...Government proposed a way of taking the plea after Speedy Trial litigation... ...Government opposed [because would impeded] the full rights of the accused...

Lind (Judge): Government filing [position] was appellate exhibit 392. Defense response was appellate exhibit 393

Mr. Coombs?

Coombs (Defense): Defense's position is 393. Due to the fact that RCM 707 [Speedy Trial] issues [needing to be] preserved... ...defense would push plea after Court ruling on Speedy Trial motion.

Lind (Judge): Parties held an RCM 802 session this morning today before this session... ...this was the issue we discussed... ...plea litigation whether proposed pleas are Lesser Included Offenses the Court can accept...or irregular pleas [that the Convening Authority would accept].

That will be litigated at this session. ...also maximum punishment.

With respect to the Speedy trial issues...guilty pleas waive RCM 707...

[See RCM 707(e) "Waiver. Except as provided in RCM 910(a)(2), a plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense." See also RCM 910(a)(2)]

...Article 10 motions are not waived by the plea.

[See RCM 910(a)(2) "(2) Conditional pleas. With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary concerned may prescribe who may consent for Government; unless otherwise prescribed by the Secretary concerned, the trial counsel may consent on behalf of the Government."]

...if the Court [missed] RCM 707 will be waived...Court will enter filing [as agreed] by parties...[missed].

So, at this point looks like...the trial calendar remains...10 to 14 December [will be litigation] for the Speedy Trial. Court will tak under advisement...have a ruling by 14 to 18 January session, should Court rule no Speedy trial violated. Plea would then be entered. Agree?

Fein (Prosecution: Yes)

Coombs (Defense): Yes)