U.S. v. Inong, 58 M.J. 460

Trial Stages: Pretrial: Pretrial Confinement

1. 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; if an accused, or appellant, can demonstrate that either existed, he or she is entitled to sentence relief
2. 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

Trial Stages: Pretrial: Pretrial Punishment

1. 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; if an accused, or appellant, can demonstrate that either existed, he or she is entitled to sentence relief
2. 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

Trial Stages: Sentence and Punishment: Credits

1. in 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), this Court held that when the record reflects a tactical decision to present the issue of illegal pretrial punishment to the court-martial panel with the goal of obtaining a lesser sentence, rather than presenting the issue to the military judge for the purpose of obtaining pretrial punishment credit, that tactical decision waives the issue of whether a specific credit for pretrial punishment is warranted; relying on these cases, the Court of Criminal Appeals concluded that appellant made a tactical decision at trial to use the conditions of his pretrial confinement as a means of obtaining a lesser adjudged sentence, rather than seek credit against his adjudged sentence by arguing the issue of illegal pretrial punishment; this Court holds the Court of Criminal Appeals correctly applied Southwick and Tanksley to the facts of appellant’s case, and thereby correctly determined that appellant is not entitled to any appellate relief stemming from the conditions of his pretrial confinement; the Court further holds 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
2. 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

Trial Stages: Appeals: Waiver

1. 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
2. the purpose of the MCM’s "raise or waive" rule is to promote the efficiency of the entire justice system by requiring the parties to advance their claims at trial, where the underlying facts can best be determined; this rule is especially important in the military justice system because of the turnover of personnel and changing conditions at military confinement facilities; the rationale behind waiver is to eliminate the expense to the parties and the public of rehearing an issue that could have been dealt with by a timely objection or motion at trial by the one party best positioned to make that happen – the party in need of relief; this principle is essential to the continued effectiveness of our heavily burdened trial and appellate judicial systems

Miscellaneous Matters: Judicial Review: Stare Decisis

1. this Court is respectful of the important doctrine of stare decisis; under this fundamental principle, adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process; stare decisis is a principle of decision making, not a rule, and need not be applied when the precedent at issue is unworkable or badly reasoned