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

App. 21, R.C.M. 305(i) APPENDIX 21
id.at 121 n. 23), distinguished Morrissey and Gagnon from pretrial
probable cause hearings ( id. at 121 n. 21) and did not
require an adversary hearing at such pretrial proceedings. The
District of Columbia Court of Appeals deciding that this holding
i n G e r s t e i n a p p l i e s t o p r e v e n t i v e d e t e n t i o n h e a r i n g s a s w e l l .
United States v. Edwards, supra.
The provision that the Military Rules of Evidence do not apply
at the initial review parallels federal civilian practice. See 18
U.S.C. § 3146(f). The burden of proof is on the government. A
preponderance standard was selected because it strikes the best
balance between the interests in the military setting of the prisoner
and society and because it is easily understood. A higher
standard is not constitutionally required. Gerstein v. Pugh, supra
at 119-21. See also Morrissey v. Brewer, supra at 485-89. Federal
civilian courts may deny bail in capital cases if “the court or
judge has reason to believe that no one or more conditions of
release will reasonably assure that the person will not flee or pose
a risk of danger to the community.” 18 U.S.C. § 3148. In noncapital
cases, the judge “in the exercise of his discretion” decides
whether and how much bail will be set and hence, in effect,
whether the prisoner shall be released. 18 U.S.C. § 3146(a).
Subsection (7) specifically authorizes the presentation of additional
matters to the reviewing officer, and thus makes clear the
continuing authority and responsibility of that officer over pretrial
confinement. This continuing authority is necessary, especially in
the unusual case in which referral of charges is delayed.
(j) Review by military judge. This subsection is new. MCM, 1969
(Rev.) did not provide for review of pretrial confinement by the
military judge, and it was only recently that the power of a
military judge to order release from confinement was recognized,
at least implicitly. See Porter v. Richardson, supra; United States
v. Lamb, 6 M.J. 542 (N.C.M.R. 1978), pet. denied, 6 M.J. 162
(1979); United States v. Otero, 5 M.J. 781 (A.C.M.R.), pet. denied,
6 M.J. 121 (1978). Contra, paragraph 21c of MCM, 1969
(Rev.).
T h i s s u b s e c t i o n e s t a b l i s h e s t h a t t h e m i l i t a r y j u d g e h a s t h e
power after referral (United States v. Newcomb, 5 M.J. 4 (C.M.A.
1977)) to review pretrial confinement and to order release when
appropriate. Two separate, but related, issues may be involved:
(1) whether the prisoner should be released as of the time of the
hearing; and (2) whether confinement already served was legal.
The prisoner may raise either or both of these issues by motion
for appropriate relief. All the procedures and protections normally
attendant to an Article 39(a) session (see R.C.M. 803) apply. The
rule does not specify when such a session would take place. As
with other pretrial motions (see R.C.M. 905) and with scheduling
proceedings generally (see R.C.M. 801), the determination when
an Article 39(a) session will be conducted and when a motion
will be litigated is a matter within the sound discretion of the
military judge. Note also that the matter may be addressed in a
conference under R.C.M. 802 and, if the parties agree, resolved
without need for an Article 39(a) session. The standards for either
decision posit that the reviewing officer’s decision is entitled to
substantial weight (see United States v. Otero, supra) and may
not be overturned in the absence of an abuse of discretion, violation
of subsections (i)(1)(B) and (C) of this rule, or information
not presented to the reviewing officer. This procedure is analogous
to the appeal provisions in 18 U.S.C. § 3147.
The rule is silent concerning the overlapping responsibilities of
A21-20
the military judge and the reviewing officer. Once charges are
referred, the need for a reviewing officer diminishes, and it could
be argued that the reviewing officer’s role should terminate on
referral. On the other hand, even after referral, the reviewing
officer may be more accessible to the parties than the military
judge, so that it was considered unwise to rule out further action
by the reviewing officer.
The remedy for certain violations of the rule is prescribed in
subsection (k) of this rule and is analyzed below. Note that the
military judge must order the remedy when one or more of the
identified violations occur.
(k) Remedy. The requirement for an administrative credit for violations
in subsection (f), (h), (i), or (j) of this rule is based on
United States v. Larner, 1 M.J. 371 (C.M.A. 1976). This credit is
the sole remedy for violation of these provisions. See United
States v. Nelson, 18 U.S.C.M.A.\177, 39 C.M.R. 177 (1969).
Violations of other provisions would not render confinement illegal
and hence would not trigger the sentence relief requirements.
Such violations would be tested for specific prejudice, and, where
such was found, would trigger a requirement to grant relief appropriate
to cure the prejudice suffered. Note that if one of the
required steps is omitted, but the next step occurs within the time
period for the omitted step, and pretrial confinement is otherwise
valid, no credit is required. For example, if the commander does
not prepare a memorandum under subsection (h)(2)(C), but the
review under subsection (i)(l) occurs within 72 hours of imposition
of restraint, and the grounds for pretrial confinement are
established, the accused is entitled to no credit. Similarly. if the
military judge reviews pretrial confinement under subsection (j)
within 7 days of the imposition of confinement and confinement
is approved, the omission of the review under subsection (i)(l)
would not entitle the accused to credit.
The one day credit is in addition to the day for day credit
provided by DOD Instruction 1325.4 as interpreted by United
States v. Allen, 17 M.J. 126 (C.M.A. 1984) and is intended as an
additional credit to deter violations of the rule. This remedy does
not replace sanctions against persons who intentionally violate
these rules. See Articles 97, and 98. The credit for illegal pretrial
confinement (in addition to any other administrative credit) is
provided as a matter of policy, and does not reflect a determination
that such cumulative credit is otherwise required.
The credit applies against confinement, if adjusted, and then
against several other specified penalties. Thus an accused entitled
to sentence relief whose adjusted sentence includes no confinement
usually will receive some form of sentence relief. Note,
however, that the remedy does not apply to other forms of punishment
including punitive discharges or reduction in grade. This
is because these penalties are so qualitatively different from confinement
that the fact that an accused has served confinement
w h i c h w a s t e c h n i c a l l y i l l e g a l s h o u l d n o t a u t o m a t i c a l l y a f f e c t
these forms of punishment.
The rule does not prescribe the mechanics for implementing the
credit since this will depend on the stage at which the violation of
the rule is discovered. Cf. United States v. Larner, supra. Usually
the illegality will be determined by the trial judge, who shall also
announce the remedy. After the sentence is announced, the military
judge should announce on the record how the credit will
apply to it. Where after application of this credit no confinement
would remain to be served the accused should not be confined