How Do I Appeal Pre-Trial Confinement in the Military?
There are two ways to appeal a decision by command to place you in pre-trial confinement. The first involves the seven-day review after you’re placed in pre-trial confinement, during which time a neutral and detached officer will determine whether or not confinement is necessary. Your defense attorney is able to argue that you should not be placed in confinement because there is insufficient evidence to establish the crime occured, because you are not a flight risk, and/or because you are not at risk of committing serious misconduct in the future. Then the seven-day reviewing officer, or the pre-trial confinement review officer, will determine whether you should be released from pre-trial confinement.
The military judge also can review your pre-trial confinement after your charges are referred to trial. Your attorney is able to raise a legal motion to the judge to request your release ahead of trial. The military judge, however, only has a couple of ways in which to order your release from pre-trial confinement. The first is to find that the pre-trial confinement review officer’s decision was an abuse of discretion, or in other words, that they screwed up that decision in some kind of meaningful way. They could also determine that some new information shows that you should be released. That’s what the military judge can review, and in those circumstances, they can release you from pre-trial confinement.
What Can My Civilian Attorney Do for Me If I’m Facing Military Pre-Trial Confinement in My Sex Crime Case?
It is definitely in your best interest to have a civilian attorney represent you at the seven-day pretrial confinement hearing, in which your pre-trial confinement is reviewed and the determination is made as to whether that’s proper. Your civilian attorney could also later file a motion, or a request, to the military judge to say that the circumstances have changed or the seven-day reviewing officer got it wrong, and ask the military judge to release you from confinement. As discussed above, your best chance of release is at the initial hearing.
And the last—and probably most unique—point is that your civilian defense attorney, and specifically any attorney who works for this firm, has a tremendous amount of experience seeing confinement issues and talking to confinement personnel about unfair treatment or treatment that’s not consistent with the law. Even if we can’t get you released, we can file a request to ask for additional credit if you are confined as a result of a court-martial conviction. We might ask for two-for-one or three-for-one credit if the circumstances of your pre-trial confinement are wrong or if they’ve been mistreating you.
