2008 edition - Fort Sam Houston - U.S. Army

and to act. See Article 9(e). See also paragraphs 21 and 22, Part
IV.
(e) Advice to the accused upon confinement. Except for subsection
(e)(1), which is based on Article 10 and appeared in subparagraph
20 d (4) of MCM, 1969 (Rev.) this subsection is new.
It is similar to Fed.R.Crim. P.5(c) which requires the magistrate
to give such advice to the defendant at the initial appearance. The
rule does not specify who shall inform the accused. This affords
considerable flexibility in implementing this provision.
Note that violation of this subsection does not trigger the remedy
in subsection (k) of this rule. Consequently, a violation of
this subsection must be tested for prejudice. See Article 59.
(f) Military counsel. This subsection is new. The primary purpose
of the rule is to help protect the accused’s interest in the pretrial
confinement determinations. Secondarily, this requirement should
enable the accused to avoid injury to the defense in subsequent
proceedings, and, when necessary, to begin to marshal a defense.
See e.g., Article 49(a). The assignment of counsel at this stage is
of central importance to ensuring the fairness of the pretrial confinement
process. The requirement parallels similar requirements
in federal practice (Fed.R.Crim. P.5(c) and 44(a)) and under the
District of Columbia Code (D.C. Code § 23-1322(c)(4)). See
generally United States v. Jackson, 5 M.J. 223 (C.M.A. 1978);
United States v. Mason, 21 U.S.C.M.A. 389, 45 C.M.R. 163
(1972); United States v. Przybycien, 19 U.S.C.M.A. 120, 122n. 2,
41 C.M.R. 120, 122n. 2 (1969). Consequently, failure to do so
triggers the remedy in subsection (k) of this rule.
The subsection does not require that counsel appointed at this
stage will represent the prisoner throughout subsequent proceedings.
Although this would be desirable, the mobility of the armed
forces, the locations of confinement facilities, and the limits on
legal resources render an inflexible requirement in this regard
impracticable. Nothing in the code or the Constitution requires
such early appointment of defense counsel for purposes of representation
at trial. Cf. Gerstein v. Pugh, supra at 123; Kirby v.
Illinois, 406 U.S. 682 (1972). But see United States v. Jackson,
supra. Current case law permits assignment of counsel for a
limited duration, at least if the limited nature of the relationship is
made clear to the client at the outset. See United States v. Timberlake,
22 U.S.C.M.A. 117, 46 C.M.R. 117 (1973); Stanten v.
United States, 21 U.S.C.M.A. 431, 45 C.M.R. 205 (1972); United
States v. Kelker, 4 M.J. 323 (C.M.A. 1978); cf. United States v.
Booker, 5 M.J. 238 (C.M.A. 1977). Where such a limited relationship
is the practice, it should be included in the advice under
subsection (e) of this rule to help prevent misunderstanding. If the
limited nature of the relationship is not explained to the prisoner,
it may not be possible, without the prisoner’s consent, to termin
a t e t h e r e l a t i o n s h i p f o r t h e c o n v e n i e n c e o f t h e g o v e r n m e n t .
United States v. Catt, 1 M.J. 41 (C.M.A. 1975); United States v.
Eason, 21 U.S.C.M.A. 335, 45 C.M.R. 109 (1972); United States
v. Murray, 20 U.S.C.M.A. 61, 42 C.M.R. 253 (1970).
Nothing in this rule requires that counsel assigned for pretrial
confinement purposes be located near the prisoner. Once again, as
desirable as this may be, such a requirement would be impracticable.
It is not uncommon for a prisoner to be confined, at least
initially, far from any available counsel. The rule is designed to
afford the services considerable flexibility in dealing with such
situations. The distance between the prisoner and defense counsel
should not pose a serious problem for the defense. They can
ANALYSIS
App. 21, R.C.M. 305(h)
communicate by telephone, radio, or other means, and, under Mil.
R. Evid. 502, such communications would be protected by the
attorney-client privilege. Moreover, since the initial review may
be accomplished without the presence of prisoner or defense
counsel, the defense counsel may submit appropriate written matt
e r s w i t h o u t p e r s o n a l c o n t a c t w i t h e i t h e r t h e p r i s o n e r o r t h e
reviewing officer.
1993 Amendment: The amendment to subsection (f) provides a
specific time period by which to measure compliance. Because it
is possible to obtain credit for violations of this section under
subsection (k), a standard of compliance was thought necessary.
See e.g., United States v. Chapman, 26 M.J. 515 (A.C.M.R.
1988), pet. denied 27 M.J. 404 (C.M.A. 1989). This amendment,
while protecting the rights of the prisoner, also gives reasonable
protection to the Government in those cases where the prisoner is
confined in a civilian facility and the request is never, or is
belatedly, communicated to military authorities. While it is expected
that military authorities will have procedures whereby civilian
confinement authorities communicate such requests in a
timely fashion, the failure to communicate such a request, or the
failure to notify military authorities in a timely manner should be
tested for prejudice under Article 59 U.C.M.J., and should not be
considered as invoking the credit provisions of subsection (k) of
this rule.
(g) Who may direct release from confinement. This subsection is
a substantial change from the following language from paragraph
22 of MCM, 1969 (Rev.): “The proper authority to release from
confinement in a military confinement facility is the commanding
officer to whose authority that facility is subject.” Notwithstanding
this provision, the authority of the commander to whose
authority the confinement facility is subject was often treated as
ministerial in nature, at least in some of the services. Authority to
direct release was recognized to repose in a commander of the
accused. See generally Boller, Pretrial Restraint in the Military,
50 Mil.L.Rev. 71, 96-99 (1970); see also United States v. Pringle,
19 U.S.C.M.A. 324, 41 C.M.R. 324 (1970). More recently, the
a u t h o r i t y o f m i l i t a r y j u d g e s ( s e e P o r t e r v . R i c h a r d s o n , 2 3
U.S.C.M.A. 704, 50 C.M.R. 910 (1975); Courtney v. Williams,
supra) and officials appointed to do so under regulations (see
United States v. Malia, supra) to order release from pretrial conf
i n e m e n t h a s b e e n r e c o g n i z e d . T h e s u b s e c t i o n e x p r e s s l y e s -
tablishes the authority of such officials to direct release from
pretrial confinement.
( h ) N o t i f i c a t i o n a n d a c t i o n b y c o m m a n d e r . S u b s e c t i o n ( 1 ) i s
b a s e d o n A r t i c l e 1 1 ( b ) , a l t h o u g h t h e t e r m i n o l o g y h a s b e e n
changed somewhat since the terms “commander of a guard” and
“master at arms” no longer accurately describes the confinement
personnel who are responsible for making the report. This subsection
is also important in setting in motion the procedures for
approval or disapproval of confinement. See also, Fed.R.Crim.
P.5(a). The discussion is based on Hearings on H.R. 2498 Before
a Subcomm. of the Comm. on Armed Services of the House of
Representatives, 81st Cong., 1st Sess. 913 (1949).
Subsection (2)(A) places the real initial decision for pretrial
confinement with the prisoner’s commander. Although the immediate
commander may not be a neutral and detached official for
pretrial confinement purposes (United States v. Stuckey, 10 M.J.
347 (C.M.A. 1981); but cf. United States v. Ezell, 6 M.J. 307
(C.M.A. 1979); Courtney v. Williams, supra), it is appropriate to
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