U.S. v. Fulton, 55 M.J. 88

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

1. where no other remedy is appropriate, a military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment; the fact that illegal pretrial punishment is not listed among the illustrative bases for dismissal in RCM 907(b) does not preclude dismissal where appropriate
2. even though dismissal may be an appropriate remedy for illegal pretrial punishment, it does not follow that dismissal is the appropriate remedy in a given case; dismissal is not necessarily appropriate even where an appellant has been denied a significant constitutional right
3. although illegal pretrial punishment is not condoned, in the context of competing interests, the extraordinary remedy of dismissal of the charges is not required as a matter of law

Core Criminal Law Subjects: Motions, Generally: Motions to Dismiss

1. where no other remedy is appropriate, a military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment; the fact that illegal pretrial punishment is not listed among the illustrative bases for dismissal in RCM 907(b) does not preclude dismissal where appropriate
2. even though dismissal may be an appropriate remedy for illegal pretrial punishment, it does not follow that dismissal is the appropriate remedy in a given case; dismissal is not necessarily appropriate even where an appellant has been denied a significant constitutional right
3. although illegal pretrial punishment is not condoned, in the context of competing interests, the extraordinary remedy of dismissal of the charges is not required as a matter of law

Trial Stages: Pretrial: Pretrial Punishment

1. where no other remedy is appropriate, a military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment; the fact that illegal pretrial punishment is not listed among the illustrative bases for dismissal in RCM 907(b) does not preclude dismissal where appropriate
2. even though dismissal may be an appropriate remedy for illegal pretrial punishment, it does not follow that dismissal is the appropriate remedy in a given case; dismissal is not necessarily appropriate even where an appellant has been denied a significant constitutional right
3. although illegal pretrial punishment is not condoned, in the context of competing interests, the extraordinary remedy of dismissal of the charges is not required as a matter of law

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where military judge incorrectly concluded that he had no authority to dismiss charges for illegal pretrial punishment, such an error will be prejudicial if the reviewing court concludes: (1) that dismissal was the only appropriate remedy as a matter of law, or (2) that there was a reasonable likelihood the military judge would have considered dismissal as a remedy had he been aware that he had the discretion to dismiss the charges
2. although military judge incorrectly concluded that he had no authority to dismiss charges for illegal pretrial punishment, the fact that he chose not to impose a remedy greater than a three-for-one confinement credit makes it clear that the military judge did not consider the three-for-one remedy inadequate and would not have chosen the most drastic remedy – dismissal – even had he been aware that it was an available option