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A trial counsel's guide for Article 13 motions: making your best case
Army Lawyer, Sept, 2002 by Jeffery D. Lippert
Introduction
You are the trial counsel for an active-duty infantry brigade, about to try a drug distribution and aggravated assault case. The accused is pleading guilty. The pretrial agreement and stipulation of fact are ready. Your sentencing witnesses are present and prepared. You are ready to go. Then, near the end of the pretrial Rule for Court-Martial (RCM) 802 (1) session, minutes before you are to go into court, the defense counsel announces that she intends to move for appropriate relief under Article 13, Uniform Code of Military Justice (UCMJ). (2)
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She states that the accused's unit made him hobble across the company area, before trial, wearing hand-irons and shackles in front of his entire company. The company was practicing for a change of command ceremony. When the accused and his escort were about fifty meters to the left of the company formation, the commander ran up and quickly spoke to the first sergeant. The first sergeant then ordered the company to execute a left face and parade rest. He then stated to the company in a loud voice, "You all see that ... that's what happens to drug dealers and scum in this company." The first sergeant then spat on the ground, ordered a right face, and continued the change of command rehearsal.
The defense counsel claims that the unit's actions violated Article 13, and that her client is entitled to substantial sentence credit. She intends to put the accused on the stand to testify about the incident, as well as other soldiers who witnessed the unit's actions. The military judge, with a distinctly unhappy expression on his face, turns to you and says, "Well, trial counsel, how do you intend to handle this?"
Article 13 motions are a regular procedure for defense counsel seeking sentence relief for real or perceived penalties imposed on their clients by the chain of command before trial. (3) This note reviews the standards for relief and waiver of Article 13 violations, and discusses how trial counsel and the chain of command can work together to present a persuasive defense against a claim of unlawful pretrial punishment.
Article 13 Standard
Motions for Relief
Article 13, UCMJ, prohibits the imposition of punishment or penalty on an accused before trial, as well as pretrial arrest or confinement conditions more rigorous than required to ensure the accused's presence at trial. (4) Motions for appropriate relief under Article 13 generally fall into two categories: (1) those in which the accused claims he was punished by conditions of confinement or arrest more rigorous than necessary; (5) and (2) those in which the accused claims that some other unit or chain of command action punished or penalized him before trial. (6) Courts routinely award administrative and judicial sentence credit as relief for violations of Article 13. (7)
Whether the court is dealing with a "more rigorous" or a "punishment-or-penalty" type Article 13 motion, the factors the court will consider in determining whether an accused has suffered pretrial punishment are similar. These factors, which are meant to assist the military judge, are:
(1) What similarities, if any, in daily routine, work assignments, clothing attire, and other restraints and control conditions exist between sentenced persons and those awaiting disciplinary disposition;
(2) What relevance to customary and traditional military command and control measures can be established by the government for such measures;
(3) Are the requirements and procedures primarily related to command and control needs, or do they reflect a primary purpose of stigmatizing [the accused]; and
(4) Was there an "intent to punish or stigmatize [the accused]." (8)
The lines between these factors are often blurred, and the weight given to each particular factor varies on a case-by-case basis. In some cases, the court may view seemingly innocuous, well-intentioned unit actions as pretrial punishment. (9) In other cases, however, the court may find that severe limitations on an accused's liberty are justified. (10) Because most accused soldiers do not spend time in pretrial confinement, trial counsel more frequently face punishment-or-penalty type Article 13 motions. Accordingly, after a brief discussion of waiver, this note focuses on responding to this type of motion.
Waiver and Article 13
Most motions or objections are considered waived if not raised in a timely manner at trial. (11) Unless affirmatively waived, (12) however, an accused may make a motion for relief based on a violation of Article 13 at any time, even on appeal. (13) Appellate courts may consider evidence not contained in the record of trial to determine whether an accused suffered pretrial punishment. (14) Therefore, even if the accused does not request relief, the trial court should address pretrial punishment of the accused, obtaining an affirmative waiver of Article 13 issues if the accused does not seek such relief.
