It’s pretty bad, really undermines our system when politicians step in and support an accused who clearly undermines unit discipline and cohesion. Even those who agree with him should understand you can’t troll your CoC on a national level and go. Unpunished.
The only person punished for the disgrace of these last few months, was the sole officer who spoke out against it.
The Marine senior leadership supported their democratic bosses by awarding pretrial confinement with a gag. With no sign of violence or any attempt to flee by the only honest field grade (or general officer) in the Marine Corps.
The senior leadership then accessed the only honest officer's medical records and gave them to media sources also allied with their democratic party.
The Marine field grade officers and generals did this to a fellow field grade, knowing the world is watching. The only conclusion is that they are so evil and dishonest they are incapable of functioning in a justice system in any capacity.
America can no longer afford Marine officers, their very evil cries out for them to be barred forever from any office of trust. And their pay and pensions must be disgorged back to the public treasury.
Do you have personal knowledge that Lt Col Scheller was the only officer who was held accountable for the withdrawal? He may have been the only one court-martialed...but to presume nobody faced even a markdown on their performance report? I'm certain many were held to account. You just didn't read about them on page one.
The Marine senior leadership applied RCM 302 and determined Lt Col Scheller would continue engaging in misconduct and lesser forms of restraint were insufficient to prevent it. There's no requirement that a person be violent or a flight risk to be placed in military pretrial confinement. There's nothing political about jailing a marine dared his bosses to jail him, either.
The Marines who held Lt Col Scheller accountable knew the world was watching and acted appropriately to enforce existing prohibitions against members from publicly criticizing their own chain of command. The spectacle created by Lt Col Scheller was a disgrace; so too is everyone seeking to inject partisan politics into a matter of good order and discipline.
CTC, the RCM you are looking for is 305 (not 302) and the standard is not simply that the confinee would continue to engage in misconduct but that he would engage in “serious criminal misconduct.”
Correction noted, thanks. I'm open to the idea that Lt Col Scheller's continued disobedience wasn't "serious" enough to justify PTC, but I've lost that argument countless times in cases of similar disobedience (e.g. repeatedly breaking restriction or failure to go) where the misconduct was not occurring on the world stage.
1. It is rare for officers to go to PTC.
2. Putting someone in PTC is not UCI, even if done for an improper motive. It is something else, but not UCI.
3. The basis and reasons for PTC can be addressed at the IRO hearing.
4. If the result is unsatisfactory to the defense, then a military judge can be asked to order release. And the MJ gives Allen (17 M.J. 126 (C.M.A. 1984) (and can give Suzuki credit (sorry, old guy here, 14 M.J. 491 (C.M.A. 1983) upon conviction and sentencing. Prior to these two cases we spent a lot of time litigating the issues and seeking credit. Or there's potential Gregory credit. United States v. Gregory, 21 M.J. 952, 954 (A.C.M.R. 1986) (government's failure to follow the procedural requirements of R.C.M. 305, requiring command review and written memorandum supporting continued pretrial confinement, plus review by a neutral and detached officer.)
5. An improper motive can be addressed to the military judge as a violation of RCM 305, and abuse of discretion by the IRO at least. And, it could be argued that the motives are so outrageous that it is Article 13 pretrial punishment.
"Article 13 prohibits two things: (1) the intentional imposition of punishment on an accused before his or her guilt is established at trial, i.e., illegal pretrial punishment, and (2) arrest or pretrial confinement conditions that are more rigorous than necessary to ensure the accused's presence at trial, i.e., illegal pretrial confinement. Id. at 154 (citing United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997))."
See United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000)--one of those infamous cases about PTC (and also for what happened to him at the USDB). See also United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003); United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997); United States v. Salerno, 481 U.S. 739, 746 (1987).
6. Allen and Suzuki credit can be waived as part of a PTA.
7. If, at the time of PTC, there is an intent to, or likelihood of court-martial, the forum (SPCM, GCM) is irrelevant, isn't it?
8. That the accused is able to negotiate a favorable PTA does not automatically make the PTC decision violative of the rules on PTC, improper, or unlawful. Shirley we've all had cases where we started negotiating a PTA before, during, and immediately after the PTC begins.
9. CAAF has approved PTC for suicide risks as a reason standing along or combined with "will do it again," or "flight risk."
10. Plenty of enlisted people in PTC have mental health issues and also are rightly in PTC. There are other enlisted people who are put in PTC who should not or need not be. Perhaps, as with other notorious cases and issues over recent years, this is an opportunity to examine the rules, policies, and practices of putting someone in PTC regardless of their rank. So, how about we have standing courts-martial, rather than ad hoc, at which it is a MJ who reviews PTC decisions--for some reason I think this happens in the civilian community?
11. Now, most of us don't know the details of why and how this accused was put in PTC. To quote Charles Dickens, “Now what I want is, Facts.. . . Stick to Facts Sir!” Charles Dickens, Hard Times. Oxford World’s Classics (1998), at 1. Perhaps the various FOIA requests out there will eventually shed more light on the issue.
Great post, with cites! Thank you, Mr. Cave.
The nice thing about Suzuki credit was that you could get up to 3 for 1, rather than what now seems to be ???
Where I’ve seen suicide risk as an issue for initial or continued pretrial confinement, it has been because suicide risk made one a flight risk. “To be clear, suicide and flight risk were not entirely independent factors in this case. A predominant concern through the proceedings was the Appellant’s suicide attempt rendered him a flight risk.” United States v Wardle, 58 MJ 156. CAAF ultimately found the appellant to have been a flight risk independent of the suicide risk and avoided the question of whether one’s suicide risk could warrant PTC: “However, we need not reach the issue of whether suicide risk in this case, or under other circumstances, would warrant pretrial confinement.” Are you aware of a subsequent case that does address that directly?
Ryan, you are correct and that was the case I had in mind. And I agree I may have overgeneralized the case above. Cheers.
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