1 M.J. 172 | United States Court of Military Appeals | 1975
Lead Opinion
MEMORANDUM OPINION
Petitioner in this Petition for Extraordinary Relief asks that we order his immediate release from the United States Disciplinary Barracks pending the convening authority’s decision whether to refer this case to trial or to dismiss the charges and that we grant such other relief that the Court deems just and equitable.
Petitioner avers that he was tried by
During oral argument on the petition, counsel for respondents informed us that the convening authority had referred petitioner’s case to a court-martial on September 19, 1975, thé same day that we ordered oral argument on the petition. Moreover, counsel for respondents informed us that the convening authority had both approved continued confinement for petitioner on September 18, 1975, and directed that Disciplinary Barracks personnel obtain the approval to keep petitioner in the Disciplinary Barracks as required by paragraph 1-3, Army Regulation 190-4.
Based on these factors, counsel for respondents argue that the petition is moot since petitioner has received the relief that he seeks—that his case be referred to trial. While petitioner does indeed request that we order his release pending the convening authority’s decision regarding referral of the charges, and that referral has now taken place, recent pronouncements of the Supreme Court,
Respondents also urge that we ignore petitioner’s petition because it does not, on its face, show proof of service on respondents. Rule 23A, Rules of Practice and Procedure, United States Court of Military Appeals. We decline to hold this in propria persona petitioner absolutely responsible for knowing all of our rules. Here, we have provided respondents with notice of his petition and they have had full opportunity to present argument on the petition.
Because of respondents’ apparent disregard for petitioner’s continued confinement in contravention of both the Code and Army regulations, we are compelled to exercise our extraordinary writ authority
Gerstein v Pugh, 420 US 103 (1975).
See, e.g., DeChamplain v Lovelace, 510 F2d 419 (8th Cir 1975), judgment vacated as moot, 43 USLW 3633 (US June 3, 1975).
Noyd v Bond, 395 US 683 (1969); Newsome v McKenzie, 22 USCMA 92, 46 CMR 92 (1973) (Duncan, Judge, dissenting); United States v Snyder, 18 USCMA 480, 40 CMR 192 (1969); United States v Bevilacqua, 18 USCMA 10, 39 CMR 10 (1968); Gale v United States, 17 USCMA 40, 37 CMR 304 (1967); United States v Frischholz, 16 USCMA 150, 36 CMR 306 (1966).
Dissenting Opinion
(dissenting):
I dissent to the Court’s memorandum opinion in this case and in Thomas v United States, Miscellaneous Docket Number 75-43 (USCMA Sept. 30, 1975).
In each proceeding, the petitioner alleges he is "not under charges” and is being improperly detained in the United States Disciplinary Barracks. The respective allegations as to the charges are incorrect. Both petitioners had been convicted by court-martial. The convictions were set aside on appellate review, but the charges were not dismissed; instead, a rehearing was authorized as to each petitioner.
Kelly’s petition was received by this Court on September 16, 1975; the
At argument, we were advised that, as to each petitioner, a determination has been made by competent court-martial authority that the petitioner be held in confinement pending retrial of the outstanding charges against him, and further that the charges have been referred to a court-martial for trial. No claim was made, and no evidence was presented, challenging the correctness of the decision as to pretrial confinement. I must assume, therefore, that there was compliance with Article 9(d), Uniform Code of Military Justice, 10 USC § 809(d), insofar as the required determination for the necessity for pretrial confinement is concerned. Similarly, the validity of the reference of the charges to trial is unchallenged. What each petition comes down to, therefore, is a contention that the petitioner’s pretrial confinement cannot be in the United States Disciplinary Barracks, not because it is more onerous than pretrial confinement in another facility, but because Army Regulation 190-4, paragraph 1-3(3), provides that "confinement of detained prisoners in disciplinary barracks . . . pending their trial by courts-martial is not authorized,” except when expressly allowed by the Director of Human Resources Development on the basis of a showing of "exceptional circumstances.”
We were informed at argument that subsequent to the referral to trial of the charges, assigned counsel for one of the petitioners specifically requested that he not be transferred to another confinement facility, but be retained at the Disciplinary Barracks. As even a constitutional right can be voluntarily surrendered, I am certain that the petitioner could waive the right not to be placed in pretrial confinement at the Disciplinary Barracks without the approval of the Director of Human Resources Development. For myself, I would accept counsel’s consent to retention of his client in the Disciplinary Barracks as sufficient to constitute a waiver of the requirement of Army Regulation 190-4,
Implicit in the majority’s statement that the respondents have contravened Article 13 of the Uniform Code is an assumption that pretrial confinement in the Disciplinary Barracks is more onerous than pretrial confinement in other types of facilities. There is just no evidence to sustain that assumption. We know from other cases before this Court that the Disciplinary Barracks maintains adequate facilities providing for separation of prisoners whose convictions are final from those whose cases are still on review and, therefore, cannot be treated as sentenced prisoners. Reed v Ohman, 19 USCMA 110, 41 CMR 110 (1969). If assumptions are appropriate, I believe they are that the officials at the Barracks know that a prisoner in pretrial confinement must be separated from, and be assigned tasks different from, sentenced prisoners and that they will observe those differences. For these reasons, I respectfully dissent.
The regulation provides that approval for pretrial confinement in the Disciplinary Barracks is by the Provost Marshal General. However, the functions of that office were reassigned. General Orders No. 10 and 26, Headquarters, Department of the Army, 1974.
United States v Cambridge, 3 USCMA 377, 12 CMR 133 (1953).
See United States v Dean, 20 USCMA 212, 43 CMR 52 (1970).