Thursday, February 28, 2008

CAAF specifies pretrial punishment issue

CAAF issued the following interlocutory order yesterday:

[T]he Court notes that Appellant was placed in continuous restraint in a chair for six weeks during pretrial confinement with no indication that the Government’s conduct was undertaken upon medical advice, under medical supervision, or in accord with a medical protocol. Accordingly, it is ordered that Appellant file an additional supplement within 15 days of the date of this Order on the following issue:


United States v. Hart, __ M.J. ___, No. 07-0828/AR (C.A.A.F. Feb. 27, 2008).

CAAF gave the government 15 days to file an answer and allowed the appellant to file a reply within 5 days.

ACCA's opinion doesn't appear to be on its web site.

CAAF's approach is interesting. Rather than simply specifying the issue, CAAF chose to solicit the parties' views before granting plenary review.


Anonymous said...

CAAF has done this on various occassions in the past year (it appears mostly on collateral claims asserted in Gros). I think it is simply to fill in some of the gaps in the appellate record and probably a gentle nudge to appellate counsel on the standard for asserting errors. I cannot recall a single instance where CAAF granted on the specified supp issue.

Anonymous said...

Why didn't the defense counsel raise this issue? Defense counsel should err on the side of raising issues on behalf of their clients. It doesn't matter whether CAAF ultimately grants the issue. First, you never know what will be granted. Second, issues must be preserved. CAAF is not necessarily the court of final review.

Dwight Sullivan said...

Anon #1 -- one case in point is United States v. Hall, 65 M.J. 325 (C.A.A.F. 2007), where CAAF specified an issued to be supped, but denied the petition on 14 December 2007.

Anonymous said...

From ANON #1
My last statement of not ultimately granting on the spec supp pet issue is not an indictment of the order from CAAF nor on the merits of the issue specified, but simply a statement of fact. If I recall there have been two or three NM cases and three or four Army cases where similar orders occurred.

A second case where pet. was denied is United States v. Sivits, 65 M.J. 6 (C.A.A.F. 2007).

Jason Grover said...

Am I the only one that is confused by six weeks of restraint, in a chair?

Anonymous said...

It sounds like a sequel to "Saw." So I guess his defense attorney did a Lexis search for "chair," "sit," and "pretrial restraint." When he didn't find anything, he concluded that he had no issue. I don't have a citation. Better not push the envelope. Don't laugh - I know military attorneys like this.

Phil Cave said...

United States v. Inong, 58 MJ 460 (C.A.A.F. 2003):

In United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we will not invoke waiver of alleged Article 13 violations unless there is an affirmative, fully developed waiver on the record; today, however, the Court concludes Huffman’s affirmative waiver rule is unworkable; as a result, the Court now overrules Huffman and begins followings the "raise or waive" rule required by the Manual for Courts-Martial, United States, as relates to assertions of illegal pretrial confinement and punishment; in so doing, the Court also overrules United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000), and United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000), to the extent they establish a "tantamount to affirmative waiver" rule in the Article 13 arena; the Court therefore holds that once this opinion becomes final, failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error; having said that, however, the Court urges all military judges to remember that nothing precludes them from inquiring sua sponte into whether Article 13 violations have occurred, and prudence may very well dictate that they should.

Attribution: Stolen from CAAF.

Maybe the Court wants to revisit Inong, as they revisited other cases in Inong.

Mike "No Man" Navarre said...
This comment has been removed by the author.
Anonymous said...

General rule of legal practice: when anything sounds unfair or wrong - it should be raised. Use common sense first, legal reasoning second. The issue should have been raised at trial by the trial defense attorney. But I still think the appellate defense attorney should have raised it as part of a zealous defense.

Mike "No Man" Navarre said...

Considering the relatively outrageous sounding facts in the "grant," which could be shown to be different in briefing by the government, I would think appellate counsel would raise the issue or raise IAC for failing to raise the issue at trial in light of Phil Cave's noted case law. This is one reason I think the availability of supps and briefs on line would immensely help Mil Jus practitioners, something like PACER. If the parties in Hart want to send copies of appropriately redacted (though I would think a public filing would not need to be redacted) supps/responses/briefs to us here at CAAFlog, we would certainly act as a surrogate. Email us at or

Phil Cave said...

No Man,

Wouldn't that mean electronic filings would have to be further along than the several year experiment?

What has been the Court's experience since limited electronic filings first began in 2003?

A full scale electronic filing would allow the court to put the supps/briefs on the website reasonably quickly? That would also make available to those of us not on each Services intranet.