It’s rare that a CCA grants a petition for extraordinary relief, and so this order issued by the Air Force CCA on May 29, 2013, in the general court-martial case of United States v. Harrell is worth attention.
The Petitioner is an officer charged with orders violations, wrongful possession and use of drugs, conduct unbecoming, and fraternization. She was arraigned on March 22, 2013, and then placed into pretrial confinement six days later when she was alleged to have committed additional misconduct. The military magistrate who conducted the 7-day review of her confinement found confinement necessary and lesser forms of restraint inadequate. The Petitioner then sought judicial review of her pretrial confinement.
But the military judge detailed to the case denied the Petitioner’s request for judicial review of her pretrial confinement, finding that he lacked jurisdiction to decide the issue because the offenses for which she was confined had not been referred for trial. The Petitioner then sought extraordinary relief, which the AFCCA grants.
The court bases its decision on two key holdings. First, the CCA finds that “the commander’s original decision to place [Petitioner] in confinement was based in part on his belief she would not appear for her pending court-martial.” Order at 3. That this is true is unsurprising – it’s hard to imagine a situation where an accused pending trial is confined for new allegations without consideration of the accused’s continued presence for trial on the preexisting charges. Second, the CCA finds that Rule for Courts-Martial 305 “provides the protection of judicial review of a [magistrate’s] post-referral decision on additional non-referred offenses. Without this protection, a commander could improperly confine an accused leaving him or her without a viable recourse by simply electing not to prefer additional charges.” Order at 4. This is pretty plain.