Here’s the scenario:
Client is convicted at court-martial. Sentencing is to take place the next day, or a Monday after a Friday conviction. Based on the charges and the evidence there’s a reasonable likelihood the client will get some confinement. The command wants to put the client in pretrial confinement pending sentencing. Can they?
1. If the client was already confined, the confinement can be continued.
2. If the client was already on restriction, the restriction can be continued. Maybe pretrial confinement can be imposed in very limited circumstances.
3. The client was never in pretrial confinement or restricted, and it is months since the investigation and referral of charges. There still might be very very limited circumstances justifying pretrial confinement overnight.
The basic question comes up often enough that it’s worth revisiting the issue. Happened to me again in a case I am just completing. More on this later.
1. If the judge is available, get the judge. In several instances I’ve had the judge has made it clear to the government that the client doesn’t go into pretrial confinement until a sentence which includes confinement is announced. That admonishment has been enough to stop the confinement.
2. The consequence to the government of a wrong choice here might include credit of up to 18 months for one day of “blatantly illegal pretrial confinement,” under the scenario. Let’s take a look at United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996). It’s a short opinion, so . . .
On March 13, 1992, after findings and before sentencing, trial counsel asked the military judge to review whether it was appropriate, based on an order signed by the combat support group commander, to place appellant in confinement until sentencing the following morning. Because appellant had not actually been confined, trial counsel asked the judge to treat this as a review of pretrial confinement. During this hearing, trial counsel indicated that the reasons for confinement were the findings of guilty that afternoon, the mental health of appellant, and his being a potential flight risk. The judge offered the prosecution an opportunity to introduce other evidence but they declined. The judge reviewed the offers of proof made during the motion hearing and the evidence presented during the findings portion of the trial, and then questioned appellant. Appellant promised that he would not flee the area and would return in the morning. After considering all this information, the judge disapproved the confinement order. Later, the combat support group commander countermanded the judge’s order and placed appellant in confinement that evening. Appellant spent less than 24 hours in confinement in countervention of the judge’s order.
The next morning defense counsel asked the judge to order 2 days’ administrative credit for each partial day of the illegal confinement. After sentencing that afternoon and determining that there was no new evidence, the judge ordered 10 days’ credit for each partial day, March 13 and 14, of "flagrant" illegal pretrial confinement for a total of 20 days’ credit.
Two months later [the] Chief Circuit Military Judge, without objection, detailed himself to conduct a post-trial session under Article 39(a). Based on the "cavalier disregard for due process and the rule of law," he ordered an additional 18 months’ credit against appellant’s sentence because of the government action in the case. See United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1992).
United States v. Tilghman, 44 M.J. 493, 494 (C.A.A.F. 1996)(emphasis added).
The point to Tilghman is not that you can never have a situation where post-conviction “pretrial” confinement is appropriate. But the circumstances had better be really really good. Strong evidence that the person will flee or commit additional crimes is necessary, the mere fact of conviction is not sufficient. More on this later.