United States v. Malia

Opinion of the Court FLETCHER, Chief Judge: Appellant stands convicted, contrary to his pleas, of aggravated assault, obstructing justice, and communicating a threat, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934, respectively. Four days after appellant’s brigade commander ordered him into confinement, the military magistrate examined the propriety of this action. He immediately determined that there was a dispute over whether the appellant had threatened the alleged victim to deter him from testifying as a witness at another trial. Therefore, the magistrate decided to keep the question of release of the appellant under advisement until there was testimony taken at an Article 32, 10 U.S.C. § 832 hearing. After being incorrectly informed by the Article 32 officer that no evidence was adduced concerning the threat, the magistrate released the appellant from confinement on August 26, 1975. One day later the brigade commander overrode the magistrate’s order of release and ordered the appellant back into confinement. On September 2, 1975, the Magistrate, the Brigade Commander, the Staff Judge Advocate and others met together in' the Brigade Commander’s office to discuss the question of the pretrial confinement of the appellant. At the conclusion of this meeting, the magistrate chose to leave the appellant in pretrial confinement. This was communicated to the appellant that day. The granted issue of whether the accused’s pretrial confinement, after his release by the magistrate, was illegal is too general an inquiry and, we believe, is more clearly answered by examining three questions: 1. Can a commander overrule the decision of a magistrate? 2. May a magistrate reconsider his earlier decision? 3. What are the due process prerequisites to a hearing before a magistrate? The first question must be answered in the negative, as we agree with the holding of the Army Court of Military Review that the Brigade Commander, “Colonel Nichols lacked authority to issue the reconfinement order of 27 August and . appellant was unlawfully imprisoned on that date.” The footnote to this conclusion stated: Trial testimony to the effect that this action was “discussed with the Judge Advocate General’s office [sic],” does not alter this result. The Staff Judge Advocate had no power to vary the terms of the regulation as to the Magistrate Program. While the Court of Military Review limited its discussion to Army Regulations and local supplements thereto, we believe that a further rationale for their decision can be found in the Uniform Code of Military Justice itself and the decisions of this Court. A magistrate, as required under the concepts set forth in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976), must be neutral and detached. The cases which preceded Courtney directed necessary pretrial confinement hearings to be conducted by a judge.1 A magistrate by definition is a judge. Colonel Nichols was a military com [67] mander who, according to the Court of Military Review,” was primarily concerned with the threat to other persons.” Therefore, he was disqualified to act as a magistrate within the plain meaning and spirit of the above decision. Moreover, this Court in United States v. Ware, 1 M.J. 282 (C.M.A.1976), decided that under Article 62(a), UCMJ, 10 U.S.C. § 862(a), a commander could not reverse the finding of a trial judge but could only return the record to the court for reconsideration of the ruling. Similar reasoning applies to preserve the viability of the magistrate’s ruling on pretrial confinement. As to the second question, we generally approve the A.B.A. Standards, Pretrial Release § 5.9 (1968): (a) The release decision should be automatically re-examined by the releasing court within a reasonable time in the case of a defendant who has failed to secure his release. (b) A defendant, whether or not in custody, should be able, on application, to obtain prompt review of the release decision. (c) Frequent and periodic reports should be made to the court of general jurisdiction as to each defendant who. has failed to secure his release within [two weeks] of arrest. The prosecuting attorney should be required to advise the court of the status of the case and why defendant has not been released or tried. Applying these standards to the military justice system, and in view of the public policy 2 analyzed in United States v. Ware,3 supra, we believe the magistrate’s release decision was reviewable either on his own motion, upon application of the defendant, or upon request of command. The third question is not subject to an easy answer. There is little guidance provided in the Uniform Code of Military Justice4 or by the Manual for Courts-Martial, United States, 1969 (Revised edition).5 The first hearing by a magistrate after confinement should be prompt, that is, without unnecessary delay.6 We must look to the Supreme Court for a statement as to the nature of the hearing required. In Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975), the Supreme Court stated: These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard^ — probable cause to believe the suspect has committed a crime — traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has ap-' proved these informal modes of proof. Even understanding the additional question before a military magistrate of the propriety of confinement,7 we hold that the initial consideration of pretrial confinement must be immediate and does not necessitate an adversary proceeding. This conclusion, however, does not reach the ultimate question presented here. Subsequent to the initial hearing wherein the appellant was released, an ex parte discussion was held, at which newly discovered information was presented and the decision by the magistrate to confine prior to trial was ordered. These ex parte communications were subsequent to the Article 32 hearing where the appellant was represented by an attorney. [68] At the initial hearing, “[b]ecause of its limited function and nonadversary character, the probable cause determination is not a ‘critical stage’ in the prosecution that would require appointed counsel.”8 Nevertheless, minimum standards of fairness in the military justice system dictate that after counsel has been appointed to represent the accused, any consideration that can change the status of the accused necessarily be characterized as adversary.9 Moreover, an ex parte communication on behalf of the command should not be tolerated by a magistrate in making “a fair and reliable determination” without the presence of the accused or his attorney if so represented at that time.10 That attorney should be notified and given the opportunity to be present and rebut any statement concerning his client. We hold that consideration by the magistrate, through ex parte communication, of newly discovered evidence without an opportunity for the accused or his counsel to respond is error. Furthermore, we must examine the prejudicial effect on a conviction of improper consideration of matters relating to pretrial confinement. We do not believe consideration of such matters prejudicially affects conviction. The Supreme Court resolved this question in Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); and Gerstein v. Pugh, supra, 420 U.S. at 119, 95 S.Ct. 854, 865. In the latter case the Court commented that it is “the established rule that illegal arrest or detention does not void a subsequent conviction.” Id. However, such matters may affect the sentence. Under our unique system the Courts of Military Review may correct prejudicial error as to sentence. The proper remedy for the error in this case is an administrative credit of a period equal to that of the improper confinement.11 In the interests of judicial economy, we will provide that relief. The decision of the United States Army Court of Military Review is affirmed in all respects except that the appellant will be credited with time served from August 27 to October 7, 1975. Judge PERRY concurs. Footnotes [1] Milanes-Canamero v. Richardson, 23 U.S.C.M.A. 710, 50 C.M.R. 916 (1975); Phillippy v. McLucas, 23 U.S.C.M.A. 709, 50 C.M.R. 915 (1975); Porter v. Richardson, 23 U.S.C.M.A. 704, 50 C.M.R. 910 (1975). [2] Article 62(a), Uniform Code of Military Justice, 10 U.S.C. § 862(a). [3] Cf. Salley v. United States, 134 U.S.App.D.C. 90, 413 F.2d 364, 365 (1968); Bail Reform Act, 18 U.S.C. §§ 3143, 3146(d). [4] Articles 10 and 13, UCMJ, 10 U.S.C. §§ 810 and 813. [5] Paragraph 20(c), Manual for Courts-Martial, United States, 1969 (Revised edition). [6] See ABA Standards, Pretrial Release § 4.1 (1968). [7] Courtney v. Williams, 1 M.J. 267, 271 (C.M.A. 1976). [8] Gerstein v. Pugh, 420 U.S. 103, 122, 95 S.Ct. 854, 867, 43 L.Ed.2d 54 (1975). [9] See United States v. McOmber, 1 M.J. 380 (C.M.A.1976); United States v. Johnson, 20 U.S.C.M.A. 320, 43 C.M.R. 160 (1971); United States v. Flack, 20 U.S.C.M.A. 201, 43 C.M.R. 41 (1970) (Ferguson, J., dissenting); United States v. Estep, 19 U.S.C.M.A. 201, 41 C.M.R. 201 (1970); paragraph 44h, Manual, supra. [10] Gerstein v. Pugh, supra, 420 U.S. at 125, 95 S.Ct. 854. [11] United States v. Larner, 1 M.J. 371 (C.M.A. 1976).