The defense, as the moving party, has the burden of showing by a preponderance of the evidence that: (1) the 7-day reviewing officer’s decision was an abuse of discretion; or (2) information not presented to the 7-day reviewing officer establishes that the client should be released under R.C.M. (h)(2)(B); or (3) provisions of R.C.M. (i)(1) or (2) were not complied with when the client was ordered into pretrial confinement. If the defense establishes the first or third criteria above, then the burden shifts to the government to demonstrate sufficient grounds under R.C.M. (h)(2)(B) to continue pretrial confinement.
Rule for Court Martial 305(j) provides that “once the charges for which the accused has been confined are referred to trial, the military judge shall review the propriety of the pretrial confinement upon motion for appropriate relief.” Subparagraph (1) further provides in pertinent part that the military judge shall order release from pretrial confinement if:
(A) The 7-day reviewing officer’s decision was an abuse of discretion, and there is not sufficient information presented to the military judge justifying a continuation of pretrial confinement under subsection (h)(2)(B) of this rule;
(B) Information not presented to the 7-day reviewing officer establishes that the prisoner should be released under subsection (h)(2)(B); or
(C) The provisions of subsection (i)(1) or (2) of this rule have not been complied with and information presented to the military judge does not establish sufficient grounds for continued confinement under subsection (h)(2)(B) of this rule.
Rule for Court Martial 305 (h)(2)(B) also provides, in pertinent part, that a prisoner’s release from pretrial confinement should be directed unless there is probable cause to believe that:
(i) An offense triable by a court-martial has been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is foreseeable that:
(a) The prisoner will not appear at trial, pretrial hearing, or investigation, or
(b) The prisoner will engage in serious criminal misconduct; and
(iv) Less severe forms of restraint are inadequate.
Rule for Court Martial 305(h)(2)(B) further provides that “Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used in this rule, “national security” means the national defense and foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert.
The Discussion Section of Rule for Court Martial 305(h)(2)(B) explains that “A person should not be confined as a mere matter of convenience or experience,” and also that “less serious forms of restraint must always be considered before pretrial confinement may be approved.”
Mental condition of accused - Although an accused's mental condition is an appropriate consideration in deciding whether to place or maintain an accused in pretrial confinement, it must be relevant to the two basic criteria: (1) whether the accused will be present for trial; and, (2) whether the accused is a threat to commit other acts of serious misconduct. Error to impose pretrial confinement based on suicide risk. US v. Doane, 54 M.J. 978 (A.F.F.C.A. 2001).
Neutral and Detached IRO - Officer who consulted with investigators during the latter stages of the investigation about a proposed attempt to purchase marijuana from the accused, who gave them specific advice on the procedure to be followed, and who placed himself at the command post and provided advice to the investigators on the probable cause and various other legal issues pertaining to the operation was disqualified from acting as a hearing officer with respect to the accused's pretrial confinement. . U.S. v. Fals, AFCMR 1978, 6 M.J. 713.
Types of Confinement Credit
Allen: Credit for pretrial confinement (usually includes civilian confinement) - day for day until the sentence imposed
Article 13: Pretrial punishment or unduly rigorous conditions
R.C.M. 305 (k): Abuses of discretion in imposing pretrial confinement
Mason: Restriction tantamount to confinement
Pierce: Credit for nonjudicial punishment for the same offense