U.S. v. Fricke, 53 M.J. 149

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Pretrial Punishment

1. absent affirmative waiver of issue of unlawful pretrial punishment at trial, violations of Article 13, UCMJ, have been considered for the first time on appeal
2. being locked in a cell 23 hours a day for 326 days, being required to sit at a small desk for 15 ½ hours or stand nearby if appellant fell asleep at the desk because he was not allowed to sit or lie on his bunk, not being allowed to talk to other prisoners, and being allowed to read only the Bible or other Christian literature are not de minimus impositions on a pretrial detainee for which the law is not concerned; they are genuine privations and hardships over an extended period of time which might raise serious questions as to whether these conditions amounted to pretrial punishment
3. a factual decision on the intent of detention officials and the conditions actually imposed upon appellant was necessary to decide whether appellant was subjected to illegal pretrial punishment
4. appellant’s tactical decision to take issue of conditions of pretrial confinement amounting to pretrial punishment to the members during sentencing rather than asking the military judge for appropriate relief was tantamount to a waiver of this issue

Trial Stages: Pretrial: Pretrial Punishment

1. absent affirmative waiver of issue of unlawful pretrial punishment at trial, violations of Article 13, UCMJ, have been considered for the first time on appeal
2. being locked in a cell 23 hours a day for 326 days, being required to sit at a small desk for 15 ½ hours or stand nearby if appellant fell asleep at the desk because he was not allowed to sit or lie on his bunk, not being allowed to talk to other prisoners, and being allowed to read only the Bible or other Christian literature are not de minimus impositions on a pretrial detainee for which the law is not concerned; they are genuine privations and hardships over an extended period of time which might raise serious questions as to whether these conditions amounted to pretrial punishment
3. a factual decision on the intent of detention officials and the conditions actually imposed upon appellant was necessary to decide whether appellant was subjected to illegal pretrial punishment

Trial Stages: Merits: Guilty Pleas

1. appellant’s plea of guilty to premeditated murder did not violate Article 45(b), UCMJ, where: (1) convening authority had agreed in pretrial agreement to withdraw capital referral if the plea was accepted; (2) there was no authority requiring that paperwork re-referring the case as noncapital be completed; (3) the military judge acknowledged the noncapital referral on the record prior to accepting the plea; and (4) the failure to reduce the re-referral as noncapital to writing was technical in nature and did not deprive appellant of any essential protections

Trial Stages: Appeals: Waiver

1. absent affirmative waiver of issue of unlawful pretrial punishment at trial, violations of Article 13, UCMJ, have been considered for the first time on appeal