U.S. Army officials have charged a staff sergeant in the U.S. Army Reserves, a St. Croix native, with the premeditated murder of his supervisor, who was shot multiple times last week at Fort Gillem in Georgia, where the two men were stationed. . . .

A pretrial confinement hearing held Friday determined Valmont will remain in pretrial confinement.

An Army intelligence analyst suspected of leaking classified information to Wikileaks has still not been charged with any crime, three weeks after being arrested and put in pre-trial confinement.

This is not an unusual time. Under Article 10, UCMJ, the government has a 120 window. However, that does not mean that the charges can or will be dismissed if the government takes longer than the 120 days.

However, in the meantime here is some of the back-story which may have some relevance to SPC Manning currently in pretrial confinement at Camp Arifjan.

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.

Hasan is paralyzed from the chest down and bedridden in a military hospital in San Antonio, says Galligan. He says the U.S. Army command has imposed rules that allow for a closed-circuit television camera in Hasan’s room for Hasan’s and others’ safety; bar visits from anyone except Hasan’s family members and his lawyers and limit those visits to one hour (Galligan does not know if this time limit is per day or per visitor); require all visitors to provide picture identification; restrict all communications with Hasan to English; and require that an interpreter be present if another language is spoken.

Law.com reports.

I don’t have any legal quibble with restricting visitors to family members. That’s certainly the type of discretion and restriction you might see in pretrial confinement facilities, as well as post-trial situations. Visitation has to be a balance between allowing visits and concerns for security. As most regulations say:

The number of visitors allowed at one time may be limited to three individuals based on crowding. A valid photograph ID must be presented at each visit to gain entrance to the facility.

Non-arbitrary facility limitations. This seems especially important in light of the recent attempt of an “interloper” to get in to see Major Hasan, blogged here.

The Brig Officer in Charge or Brig Duty Officer reserves the right to disapprove anyone for visitation.

Brigs within the Navy Department have dress code restrictions as well.

• All visitors will wear clothing and footwear that are in good taste and in accordance with military requirements for appropriate civilian attire.
• No mini skirts.
• No short shorts.
• No muscle shirts/tank tops.
• No see-through garments.
• No revealing garments.
• No clothing with distasteful language or drug paraphernalia.
• No sweat suits/pt gear

(I’m using the Navy rules [SECNAVINST 1640.9C] for the moment, more on this later when I’ve had a chance to check against the Army rules for possible differences, etc.)

However, can we quibble with limitations on legal visits? My own experience is that most of the confinement facilities are decent about allowing legal visits. Some facilities are more restrictive than others. One facility may allow you to come at any hour, except during meals, count, or some other evolution. Some facilities restrict you to duty hours. Some facilities will only allow contact with the screen/window others will allow you into a private room (although the rooms are within view of the Control room).

Audio recording legal visits would be a different issue, but I’m not aware of that happening.

Major Hasan, according to his own lawyers, is very sick, and not really fit for anything at the moment. So, why would it not be medically reasonable to limit the time spent with a very sick patient.

At what point do medical and security concerns become an excuse for overly restrictive confinement? At what point do seemingly reasonable restrictions become impositions on the Sixth Amendment right to have counsel who can prepare?

Mr. Galligan is making a record, good for him. Article 10, 13, UCMJ, and case law does prohibit certain types of pretrial restraint practices. Mr. Galligan is making a record on which a military judge at court-martial may have to rule, and may even grant relief or make a mistake. As an appellate lawyer I’ve always been frustrated with trial defense counsel who don’t make a record.

Belton, Texas, solo John Galligan, who represents Maj. Nidal Malik Hasan, says he has added a close relative of Hasan’s from out of state to the defense team as of Tuesday. Hasan, the Army psychiatrist who allegedly went on a shooting spree at Fort Hood on Nov. 5, is facing a possible court martial. Galligan says he added the relative to make it possible for that relative to visit with Hasan for more than a few hours a week and to do so without being observed and possibly videotaped by Army investigators. Galligan declines to identify the relative.

Law.com reports.

Is this wise in this case. Mil. R. Evid. 502(a)(the attorney-client privilege) extends the privilege to: Mil. R. Evid. 502 (b)(3) defines:

There are situations where an attorney may want to place a family member (parent/sibling) or another person on the defense team. I have done this on occasion. However, I think it is a situation to be used sparingly and where it is actually for the purpose of “rend[ering] legal services.” What we don’t know from the article is why the family member was placed on the defense team, except to allow for private visits. If this is for private visits for the case then that is fine, but if it is a ruse merely to allow private visits between the accused client and a relative and to evade various restrictions is that proper and is it wise.

I’m certain Mr. Galligan has thought this through, and my comment should not be taken to mean that I think he’s doing something improper. But for the purpose of discussion — previous reports raised the question of counsel being denied to Major Hasan while relatives were visiting, there are restrictions on private family visits, and we have the example of some civilian attorney’s who are under investigation/prosecution for allegedly communicating information from their client to terrorists. Whether true or not, does this possibility in the Hasan case not raise a concern?

is it wise in this case to use a family member as part of the defense team?

Attorney John Galligan says Maj. Nidal Hasan has excessive restrictions — including a rule barring any visitors when his attorneys are in his hospital room.

Air Force Times reports.

This same rule operates at the pretrial confinement facility. The Brigs are pretty good about letting counsel in to visit for “legal visits.” But there are restrictions on mingling of family visits and “professional” visits.

Burdensome restrictions on the ability to prepare and to represent should be addressed to the Brig commander, and then perhaps to the GCMCA. They should be raised at the Article 32, UCMJ, hearing, and ultimately at trial. This issue, and others, will require a step-by-step record, or diary.

In United States v. Turner, NMCCA 200401570 (N-M.C. Ct. Crim. App. 22 December 2009), the court found pretrial punishment and set-aside the BCD. This may be somewhat pyrrhic because the sentence was adjudged in 2001. That means the appellant has been on unpaid appellate leave since 2001. In his claim for post-trial delay he does not assert that being on appellate leave without a DD214 was prejudicial.

When the ship returned from its brief underway period, the appellant was brought from the pretrial confinement facility to appear before the Captain and crew at a public mast (“mast” is frequently understood to mean nonjudicial punishment proceedings, but it also includes award ceremonies and individual meetings held at a service member’s request). After the Captain informed the appellant and the crew that the charges were being referred for trial, the appellant returned to pretrial confinement.

NMCCA notes that at the time he was brought to the ship, during his appearance before the CO and the crew, and on his return to PTC the accused was in irons. Also, his counsel was neither informed nor present. The CO knew at the time that he was going to refer the charges to court-martial. The court also notes that the CO was given legal advice that this wasn’t a good idea. So this is not a case of a CO making a mistake. The CO’s action were considered, deliberate, and apparently against good legal advice.

Defense counsel note, the trial was held prior to United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003).

We further hold that in the future, failure at trial to raise the issue of illegal pretrial punishment waives that issue for purposes of appellate review absent plain error. See United States v. King, 58 M.J. 110 (C.A.A.F. 2003)(holding the same as to restriction tantamount to confinement).

Inong, Slip op. at 4.

The lead defense lawyer for accused Fort Hood shooter Maj. Nidal Malik Hasan said Monday that he believes the Army is violating Hasan’s religious rights because it prohibited him from praying from the Koran in Arabic with a relative. Attorney John P. Galligan said he learned that police guarding Hasan at Brooke Army Medical Center in San Antonio cut short a phone conversation Hasan was having with one of his brothers on Friday because Hasan was not speaking in English.

San Antonio Press News reports.

It’s my recollection that the Army has a regulation about the use of language other than English during day to day interactions between personnel; that except in very informal off-duty situations, Spanish for example may not be used. This came up in a case I had where one of the obstruction of justice charges related to three accuseds talking in Spanish to create a false story. Can’t seem to re-find the regulation though. USDB requires letters to be written in English, so they can be read easily. But there is nothing about phone calls in English, although it would seem that security (escape, drugs, alcohol) would be a relevant concern or issue. If someone has a reference, that would be nice to know.

The man accused of the Fort Hood shooting rampage is facing tighter restrictions on his communication with the world outside the hospital room, where he lies paralyzed from the chest down, his lawyer said Monday. The lawyer, John P. Galligan, said Maj. Nidal Malik Hasan fell asleep during an hour-long hearing held at his hospital bed on Saturday, during which a military magistrate ruled that the suspect should be placed in pretrial confinement. That is a legal status that essentially turns his hospital room, at Brooke Army Medical Center in San Antonio, into a jail cell. He added that he is concerned the Army plans to move Maj. Hasan to Bell County jail here, which is under contract with Fort Hood to serve as a brig, when house-arrest might be more appropriate.

If he fell asleep, was he competent to participate in his pretrial confinement hearing? Why didn’t someone wake him? Also, I suspect Mr. Gilligan meant and referred to restriction. In this case the request might not be that inappropriate if the sole goal of PTC is to prevent the accused fleeing or committing additional misconduct. Balanced against this will be the firestorm and outcry if the military magistrate did concur with Mr. Gilligan’s request and place Major Hasan into pretrial restriction, to say the hospital and its grounds. R.C.M. 304 and 305 covers this situation.

Major Nidal Malik Hasan is apparently permanently paralyzed thus he is unable to flee and/or unable to commit additional similar misconduct? It is not clear what his current medical needs are and whether they can be served in the local civilian jail.

The Wall Street Journal reports.

Army Times now reports:

A box of hollow-point bullets and an anonymous note threatening an incident like the one at Fort Hood, Texas, were discovered Thursday at Fort Benning, Ga., sparking a criminal investigation and greater police presence, a witness told Army Times.According to a witness at the scene, a box of 20 hollow-point shells and a handwritten note were found in the motor pool area between 1st Battalion and 2nd Battalion, 29th Infantry, under the 197th Infantry Training Brigade.“The note said ‘tell the commanding general to call off all charges or there will be a re-enactment of Fort Hood,’ ” the witness told Army Times. He spoke on condition he wouldn’t be identified.

It’s hard to tell if the events with Major Hasan have any connection or are a factor in the actions alleged in these new and odd incidents.

Major Hasan will be having a pretrial confinement hearing soon, the Article 32, UCMJ, hearing will be scheduled at Fort Hood at some time, and some months from now the court-martial may start in earnest.

Army Times and AP report that an AWOL soldier wins stay of Canadian deportation.

Canada’s Federal Court says the country’s refugee board must reconsider the case of a lesbian who deserted the U.S. Army.

Army Times and AP reports a Soldier charged with making threat at school.

The Pettis County prosecutor has charged a soldier who had been reported missing from Fort Leonard Wood with making a terrorist threat at a Sedalia high school.

Army Times and AP reports that a Fort Campbell soldier has been charged with refusing a gate search.

The military says a Fort Campbell soldier was charged after refusing to allow a search of his vehicle and causing a gate into the installation to be shut down.