United States v. Fricke

LEO, Judge

(dissenting):

I dissent from the majority’s cursory dismissal of the appellant’s claim of pretrial punishment. I believe that the appellant has put forth a sufficient claim to warrant a remand of this issue for a DuBay proceeding.

While the appellant’s failure to raise a claim of pretrial punishment at the trial level does not waive the issue, it is “strong evidence that [he was] not being punished in violation of Article 13[, UCMJ, 10 U.S.C. § 813].” Huffman, 40 M.J. at 227. The untimeliness of the claim, therefore, is but one factor — albeit a significant factor — which must be considered with all other evidence before this court.

Unlike Huffman, however, there is no evidence in this record to assist us in determining whether the challenged conditions were intended as punishment or were “reasonably related to a legitimate goal.” Id. at 227 (quoting Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979)). What we have, instead, are conflicting post-trial affidavits submitted by the appellant and the Government.

Our superior court recently held that “Article 66(c)[, UCMJ, 10 U.S.C. § 866(c)] does not authorize a Court of Criminal Appeals to *551decide disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties.” Ginn, 47 M.J. at 243.

Accordingly, we must initially look to the appellant’s supporting affidavits to determine whether they assert “specific facts” or merely “speculative or conclusory observations.” If the affidavits are factually adequate on their face, we then look to the appellate filings and the record as a whole to determine if they “ ‘compellingly demonstrate’ the improbability of those facts” such that we may discount the appellant’s factual assertions and decide the legal issue without remand to the trial level for a DuBay proceeding. Id. at 248.

In this instance, the appellant’s affidavits are compelling in their specificity regarding the conditions of his pretrial confinement. He alleges that he was kept in a lockdown status with confined prisoners who were in disciplinary segregation for 326 days, wherein he was (1) confined to a small 6x8 cell for 23 hours a day, (2) required to sit at a small school-like desk from 0430 to 2200 hours each day, (3) allowed very limited access to reading material, and (4) was not allowed to participate in any prison programs. He additionally claims that his brig counselor told him that he was kept in these conditions to break him and make him confess. The appellant’s assertions are substantially corroborated by the supporting affidavit of Major L, a fellow-officer who was incarcerated in the adjoining cell during a portion of the appellant’s pretrial confinement.

The appellant, in his affidavits, also attempts to rebut the untimeliness of his claim by asserting that he wanted to raise the issue at trial, but instead was told by the members of his trial defense team that he should raise it on appeal. Attachment A to LCDR Fricke affidavit of 22 July 1997, at 1, Motion to Attach Documents of 22 August 1997. We have nothing from either of the trial defense counsel confirming or denying the appellant’s assertion. However, if true, it could significantly lessen the evidentiary value of not raising this issue at trial.

The terms and conditions of confinement will not be dictated by an accused, but rather “should always be left up to the correctional facility commanders and the respective services.” United States v. Palmiter, 20 M.J. 90, 96 (C.M.A.1985). Nonetheless, Chief Judge Everett, in his concurrence, opined that some of the same conditions alleged by the appellant were “far more onerous than would be required to assure the detainee’s presence and so they violated Article 13.” Id. at 99.

The Government’s sole response is an affidavit from the Director of Corrections at Naval Brig Norfolk, which attempts to rebut the appellant’s claims with generalities and conclusory observations like “LCDR Fricke ... was afforded all privileges possible” and “if LCDR Fricke did not watch TV or read other than the Bible, it must have been by personal choice.” The off-handed manner of this response is not what I expect to see from the Government in addressing an important issue before this court. It only underscores the need to remand this ease for a post-trial evidentiary hearing.

In summary, there is no basis in the appellate filings or the record as a whole to support the majority’s finding that the improbability of the appellant’s factual assertions has been “compellingly demonstrated” on this claim of pretrial punishment. Moreover, if the factual assertions of the appellant were borne out in his favor at a Dubay proceeding, I believe he would be entitled to some meaningful relief.