Military Law – Week 5 Jay Canham

1. Military Law – Week 5Jay Canham Convening a Court-Martial

2. Convening a Court-Martial • A court-martial is convened by a Commanding Officer who is known as the Convening Authority. • Can not delegate the authority. • Authority is in the position of Commanding Officer

3. Loss of the Ability to Convene a Court-Martial • A superior may withhold a subordinate’s authority to convene a Court-Martial • Regulatory Restrictions: National Security cases & where civilians have already exercised jurisdiction • “The Accuser Concept”

4. “Accuser Concept” The loss of Convening Authority because: • CA has made a prior determination on guilt or innocence; or • CA has a personal interest in the case; or • Takes an active role in the prosecution of the case; or • The CA is the victim in the case or a key witness.

5. Pre-Trial Restraint The military justice system has recognized the Constitutional protections afforded individuals while allowing the Commander to maintain good order and discipline. This balance of competing interests allows the recognition of due process while not losing sight of mission accomplishment by a military unit. The end result is a flexible system which meets the operational demands of the Commander.

6. FORMS OF PRETRIAL RESTRAINT • Confinement: Physical restraint of a person in a formal Brig. • Arrest: Moral restraint of a person by delivering an order to him to remain within a certain designated area. • Restriction in Lieu of Arrest: Moral restraint imposed by oral or written order to an accused, directing him to specified limits. • Conditions on liberty: Moral restraint imposed by orders directing a person to do, or refrain from doing, specified acts.

7. RESTRAINT FOR NON-MILITARY JUSTICE PURPOSES Imposed by the Commanding Officer, who is not limited by any probable cause requirement, but must consider Due Process rights: • Dictated by circumstances and not used as punishment; and • Such action, being only interim in nature, is utilized to accomplish a specific purpose; and • Must be subject to frequent review.

8. RESTRAINT FOR NON-MILITARY JUSTICE PURPOSES Valid Reasons a CO may restrain a service-member: • Operational or other military purposes independent of military justice, but necessary for mission accomplishment; or • Medical reasons; or • To maintain good order and discipline; or • To protect the accused from hostile act.

9. AUTHORITY TO IMPOSE PRETRIAL RESTRAINT • On Civilians and Officers: Only the Commanding Officer to whose authority the civilian or officer is subject may order pretrial restraint. This authority may not be delegated. • On Enlisted Persons: Any Commissioned Officer may order pretrial restraint of any enlisted person. A Commanding Officer may delegate this authority.

10. LEGAL BASIS FOR PRE-TRIAL RESTRAINT Legal Basis for pre-trial restraint is found in two areas: • The Constitution: Outlines the requirement for probable cause; and • The Uniform Code of Military Justice (UCMJ): The statutory authority.

11. Due Process Protections: The Requirement for Probable Cause Probable cause requires that: • Reasonable grounds must exist for believing that an offense prosecuted by court-martial was committed; and • The person sought to be restrained committed it; and • The person imposing pretrial restraint must believe the degree of restraint imposed is required by the circumstances.

12. Due Process Protections: The Uniform Code of Military Justice “…required by the circumstances…” • Accused will not appear for trial; or • The Accused will continue to engage in further serious criminal misconduct and • Lesser forms of restraint are inadequate.

13. PROCEDURES FOR PRE-TRIAL CONFINEMENT • Notice: Brig must submit a report to the accused’s CO within 24 hours of the initiation of pretrial confinement. • Decision: Not later than 72 hours after an accused has been ordered in to confinement, the CO of the accused must decide whether confinement will continue.

14. Commander’s Memorandum If a CO approves the continuance of confinement, he must submit to the Initial Review Officer a written memorandum stating the following reasons for continued confinement: • There exists a reasonable belief (probable cause) that a crime has been committed and the accused is the one who committed that crime; and • It is foreseeable that the accused will not appear for trial or • The Accused will continue to engage in further serious criminal misconduct and that lesser forms of restraint are inadequate.

15. County of Riverside v. McLaughlin (1991) The Supreme Court insisted that there be a judicial determination of the need for continued pretrial confinement within the first 48 hours of incarceration in order to meet the demands of the Constitution.

16. Initial Review Officer (IRO) Hearing • IRO must make an independent decision of probable cause and necessity for confinement. • Not a review of the CO’s decision to confine for an abuse of discretion. • The IRO Hearing must be made within 7 days of the accused being placed in pretrial confinement.

17. Military Procedure (3-Step Process) & County of Riverside v. McLaughlin • First, the commanding officer must be informed of the accused’s incarceration within 24 hours of his confinement. • Second, the CO must, within 72 hours, make a determination as to whether confinement will continue and create the CO’s memo. • Third, the IRO must hold a hearing to decide whether confinement is appropriate within 7 days of incarceration or within 10 days for good cause. Bottom Line: 3-step process is consistent with the spirit of County of Riverside v. McLaughlin and strict adherence to the 48-hour rule is unnecessary.

18. Nature of the IRO’s Hearing Informal hearing with: • the Accused and his Attorney; and • Command representatives; and • Law enforcement personnel • The rules of evidence do not apply; and • Standard of proof for confinement applied by the IRO is by a preponderance of the evidence (more likely than not or 51% sure).

19. Finality of the IRO’s Decision • The accused may request a review by the Military Judge after referral of charges. • At a later date, the IRO may, on his/her own motion, review the need for continued confinement. • The command and/or the accused may request another review by the IRO regarding his confinement decision.

20. RELEASE FROM PRETRIAL RESTRAINT Who may Order Release of the Accused from Pretrial Confinement: • The IRO may order the accused released from pretrial confinement; or • A Military Judge, upon request by the accused; or • The CO who ordered confinement may reconsider his decision and release the accused.

21. ILLEGAL PRETRIAL RESTRAINT Rule: A person held for trial may not be subjected to punishment or penalty. • A judge will determine if the conditions of pre-trial confinement are related to normal command and control measures and is not distinctively punishment… Or • …a means to “stigmatize” the accused. The bottom line is that unlawful pretrial punishment will be found where there is avoidable stigmatization.

22. RELIEF FROM ILLEGAL PRETRIAL RESTRAINT Remedy for Unlawful Pretrial Confinement: • One day credit for each day of illegal confinement; • Applied in addition to any other credit the accused may be entitled to as a result of the lawful pretrial confinement served. • Additional relief may be bestowed for multiple rule violations or overly harsh confinement conditions.

23. Pretrial Credit Assume an accused’s sentence includes 90 days confinement and he has spent 30 days in pretrial confinement on the day of his sentencing: • If the pretrial confinement is lawful, accused serves another 60 days = (He’ll receive 30 days credit towards his sentence which is normal pretrial credit) • If the pretrial confinement is unlawful, accused will only serve another 30 days = (He’ll receive 30 days normal credit plus 30 days for illegal confinement credit, to be taken off his 90 day sentence) • If the pretrial confinement is so harsh as to be deemed unlawful punishment …it’s possible the accused will get 3:1 credit and serve no time further from the date of the sentencing!

24. CONCLUSION Over the years, the military justice system has created a set of rules which allows the Commander to use pretrial restraint as a force multiplier. This system has developed via judicial decisions and the creation of courtroom procedures which recognize the constitutional protections afforded individuals while allowing the commander to maintain good order and discipline. This balance of competing interests allows the recognition of due process while not losing sight of mission accomplishment by a military unit. The end result is a flexible system of justice which can meet the operational demands of the military commander.