FORECITE National™ --  MILITARY: Cruel and Unusual Punishment - 8th Amendment Violations - Detention

PRACTICE NOTE: Within the United States Armed Forces, the general practice is to allow military service-members who are facing court-martial to continue performing their regular duties, or some other useful task, while their case is pending. There is no concept of bail in the military. Thus, the only time a military member is detained while a case is pending is under circumstances that demonstrate the individual to be a flight risk or if there is a need to protect society from the accused. Findings are made by an officer presiding over a pretrial confinement hearing. If the accused is found to be either a flight risk, or if the need to protect society from the accused is found to exist, the accused is ordered into pretrial confinement.

    Military Law makes a distinction between pretrial confinees (detainees) and prisoners. The former are merely being restricted, the latter are being punished. Thus, those who are being detained must not be treated like those who are being punished. See, United States v. Avila, (CAAF 6/9/00).

    Military personnel are entitled to protection against cruel and unusual punishment pursuant to the 8th Amendment to the United States Constitution. United States v. Matthews, 16 MJ 354 (CMA 1983); Article 55, UCMJ, 10 U.S.C. §855. Much of the case law analysis of cruel and unusual punishment within the military could be applied to civilian practice, with a little creative application of these principles.

    Counsel in all jurisdictions should consult their statutory requirements for pretrial detention. In any jurisdiction, there is the potential to raise an 8th Amendment claim if a detainee has been forced to engage in prisoner activities or has been abused. One judicial remedy recognized by many jurisdictions is to dismiss the charges pending against the accused.

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DEPARTMENT OF THE AIR FORCE
UNITED STATES AIR FORCE JUDICIARY IN THE CENTRAL CIRCUIT

U N I T E D S T A T E S         )
                                                )
v.                                             )             Motion to Dismiss
                                                )
Airman x                                  )
123-45-6789                           )
999th Operations Squadron      )             Date: 12 January 1999
Generic AFB, Texas                 )

    COMES NOW the Accused, and by and through counsel respectfully moves this Honorable Court to dismiss all charges and specifications against Airman X under the Sixth and Eighth Amendments to the United States Constitution, UCMJ Article 55, UCMJ Article 13, RCM 304(f), and noted departmental regulations and service instructions.

NOTICE: THIS MOTION CONTAINS EXPLICIT LANGUAGE
AND DESCRIPTIONS OF GRAPHIC EVENTS.

    1. Airman X is accused of one charge and one specification under UCMJ Article 128, and one charge and one specification under UCMJ Article 134. Specifically, Airman X is alleged to have assaulted one Mr. Guy Smiley by shooting him with a dangerous weapon. Airman X is also alleged to have engaged in disorderly conduct. This activity is alleged to have occurred on or about 15 August 1998 at the NCO club at Generic AFB, Texas, and at an establishment just outside the gates of Generic Air Force Base. The exact location of the establishment is a now-closed fast-food restaurant called "Goodburger" located in Calamity Springs, Texas.

    2. On 18 August, Airman X was arrested by the Calamity Springs police department and placed in their jail. He was transferred to the Nasty Air Force Base confinement facility on 21 August 1998. From 21 August 1998 until 3 December 1998, Airman X was housed in the Nasty AFB confinement facility. From about 19 August 1998 until on or about 2 December 1998, Airman X was represented by Capt Joan D. Arc, Nasty AFB/ADC. At some point after Capt Arc began representation of Airman X, Capt Sue Jones, Circuit Defense Counsel, was detailed to the case. After Capt Arc was released from this case on 2 December 1998, due to a conflict of interest, Capt Jones represented Airman X until 3 December 1998. On 3 December 1998, Capt Jones was released from this case and Capt Kirk Obear was detailed to represent Airman X. After an initial Article 39(a) session and arraignment, wherein the accused entered pleas of Not Guilty, the trial date was rescheduled for 19 January 1999.

    3. Nasty Air Force Base and its confinement facility is, for the purposes of this motion – and in law, the United States Government.

    4. On or about 21 August, at approximately 1400 hours, A1C Josh Gunslinger and Airman X were processed into the Nasty AFB confinement facility as pre-trial confinees. Both arrived in shackle-restraints. MSgt Tim Burns, SrA Shozbot, and SrA Lefthand conducted processing outside the actual facility. Specifically, A1C Gunslinger and Airman X were located behind two black lines at the foot of the entry-stairway. Initially, both A1C Gunslinger and Airman X attempted to enter the building. However, prior to entering the building, MSgt Burns said to both of them, "what the hell are you doing… get the fuck out of my building." SrA Lefthand and SrA Shozbot, then ordered A1C Gunslinger and Airman X to "toe the fucking black line." MSgt Burns, SrA Shozbot, and SrA Lefthand are all caucasian males. A1C Gunslinger and Airman X are African-American males.

    5. While requiring both of them to remain in the position of attention on the outdoor black line, MSgt Burns, SrA Shozbot, and SrA Lefthand continued to verbally abuse A1C Gunslinger and Airman X. On this particular day, it was approximately 100 degrees Fahrenheit outside. MSgt Burns yelled to A1C Gunslinger and Airman X that, "they were no longer airmen, but fucking prisoners." Verbal abuse from MSgt Burns, SrA Shozbot, and SrA Lefthand continued for roughly one-half hour. They continued to enforce the notion that Amn Gunslinger and Airman X were prisoners without any rights – despite their pre-trial confinement status. MSgt Burns also stated that, "[he] didn’t want to hear any shit about them not yet being convicted, because [the Air Force] brought them to jail anyway" or words to that effect. MSgt Burns also told Airman X that he "didn’t give a fuck whether they were in pre-trial – from this moment on, they are fucking prisoners and they belong to me" or words to that effect.

    5. At approximately 1430, on 21 August 1998, SrA Michael Nuts [Footnote 1], a Nasty AFB corrections specialist, joined MSgt Burns, SrA Shozbot, and SrA Lefthand outside the confinement facility. SrA Nuts introduced himself by placing his face inches away from A1C Gunslinger’s face and yelling, "what the fuck are you looking at." SrA Nuts then asked A1C Gunslinger his name. A1C Gunslinger replied, "my name is Airman First Class Gunslinger." To which SrA Nuts replied, "you are not a fucking airman, you are a fucking prisoner." SrA Nuts then stated, "from now on, you will refer to yourself as ‘prisoner jackass.’" SrA Nuts gave Airman X a similar prisoner name and required him to refer to himself as only "prisoner bitch." Immediately afterward, SrA Nuts ordered Airman X and A1C Gunslinger to yell as loud as they could "I am not an airman, I am a fucking prisoner." Additionally SrA Nuts ordered A1C Gunslinger to turn around in circles while holding his hands in the air during the aforementioned yelling. SrA Nuts required this yelling to continue for approximately 30 minutes.

    6. A1C Gunslinger was taken into the building for approximately 20 minutes, during which time Airman X remained outside with SrA Shozbot and SrA Jasper. Airman X was given a series of instructions that he had to follow, including referring to himself as a prisoner (either as "prisoner Armstrong" or "prisoner bitch"). Before he was allowed to enter the confinement facility, Airman X was required to request permission to enter. Airman X was repeatedly interrupted by SrA Shozbot and SrA Jasper, by them shouting "shut the fuck up" as soon as Airman X attempted to follow their instructions. Each time Airman X was interrupted by SrA Shozbot and SrA Jasper, he was told that he had not asked correctly and was told to "start the fuck over." Airman X was required to ask permission to enter the facility, in this fashion, approximately 12 times.

    7. At approximately this point in the induction process, Airman X was escorted into the facility. SrA Nuts told Airman X that they were going to "play a little game" with him and that there was "no way for him to win the game." SrA Nuts also told Airman X that if he or anyone else ever tried to report this conduct, that everyone at the facility would "deny it to the end."

    8. Airman X was taken into the property room, where SrA Shozbot and SrA Jasper stripped him naked. While this was occurring, Airman X could hear other confinement personnel yelling at A1C Gunslinger to perform a "strip tease." After Airman X had been stripped, SrA Shozbot told Airman X to "get his fucking ass against the wall." At this point, MSgt Burns, another confinement specialist by the name of SSgt Riley, and Capt Kermit (the confinement facility Officer-in-Charge), and several other individuals whom Airman X could not see, entered the property room. They all stood and watched Airman X, still naked, as SrA Nuts required him to state his new prisoner name ("prisoner bitch") for all to hear.

    9. Airman X remained standing against the wall, naked, while SrA Shozbot dumped out the contents of his duffle bag. SrA Shozbot then proceeded to read off a checklist and required Airman X to locate each of the items as quickly as he could. SrA Shozbot was not satisfied that Airman X was moving quickly enough, and started yelling that he was "moving too fucking slow." Apparently, confinement personnel were going back and forth between the two rooms where A1C Gunslinger and Airman X were being processed. For several of the items, it was necessary for Airman X to bend over in order to pick them up. SrA Shozbot told Airman X "don’t bend your stinking ass over in front of me - I don’t want to see your fucking ass." At that point, SSgt Riley came back into the property room. SrA Shozbot said to SSgt Riley "this stinking mother-fucker (referring to Airman X) bent his stinking ass over in front of me." As the process continued, SrA Nuts came back into the property room and saw that Airman X was bending over to pick up an item from his duffle bag. SrA Nuts then stated "prisoner bitch, are you trying to tell me to kiss your ass?" Airman X responded by saying "Sir, no, Sir." SrA Nuts stated "good, because I’ll kick your fucking ass."

    10. When the duffle bag inventory was finished, SrA Jasper told Airman X to get a towel and wrap it around him. He then told Airman X to turn around and spread his buttocks. SrA Jasper then told Airman X to turn back towards him and to lift up his testicles. Airman X complied with both of these instructions. Airman X was then told to wrap the towel back around himself and to get certain items that he would need to take with him. While the aforementioned body search had been conducted, SrA Nuts had taken all of Airman X’s clothing and had tied it into many small, tight knots. Airman X was told to collect certain items and to proceed to the next room, where the in-processing would continue. Given the number of items that Airman X was required to carry (toiletries, BDUs, T-shirts, underwear, combat boots), it was impossible for him to walk and still hold his towel up around his waist. As a result, the towel continuously slipped off from around his waist.

    11. Airman X was required to walk past Capt Kermit, MSgt Burns, SSgt Riley, and another confinement official by the name of SrA Lefthand, while his towel was falling off. By the time Airman X made it back to the black line he was told to stand on, his towel had fallen completely off. Airman X stated "prisoner bitch requests permission to pick up my towel." SrA Nuts responded by stating "if you bend your ass over in front of me, they’re going to be digging me out of your ass - do you want to do that?" Airman X said "Sir, no, Sir." He then tried to squat down, without bending over, to pick up his towel. SrA Nuts then said "prisoner bitch, didn’t I tell you not to show me your ass?" Airman X said "Sir, yes, Sir." SrA Nuts then repeated his warning "if you show me your ass one more time, they will have to be digging me out of your ass."

    12. At this point, SrA Nuts noticed that Airman X had a tattoo which contained the letters "GHC." SrA Nuts speculated that it must stand for "Gay and Homo Clique." As SrA Nuts raised this issue amongst his fellow confinement personnel, a series of explicit and profane insults ensued, resulting in severe emotional and psychological trauma to Airman X. This battery of insults started by SrA Nuts asking Airman X what sort of activities the "Gay and Homo Clique" enjoy together - "what do ya’ll do, go around sucking dicks?" Airman X stated "Sir, no, Sir." SrA Going then said "yeah right, prisoner bitch, ya’ll just suck dick and fuck each other." Then SrA Shozbot walked up to Airman X and said "prisoner bitch, I heard that you suck dick - is that true, do you suck dick?" Airman X responded "Sir, no, Sir." SrA Shozbot then asked "do like it from the front?" Airman X responded "Sir, no, Sir." SrA Shozbot then asked "well do you like it from the back then?" Airman X responded "Sir, no, Sir." Not deterred by Airman X’s insistence that he was not homosexual, SrA Shozbot stated "you got to like on of them - do you like it from the front or do you like it from the back?" Airman X responded "Sir, no, Sir."

    13. For the next several minutes Airman X was repeatedly asked the same question "which do you like - from the front or from the back?" After a long period of badgering on the subject, the confinement officials then forced him to pick either "from the front" or "from the back." Airman X stated "from the back," thinking that they would leave him alone if he said what they wanted him to say. After an uproar of laughter, Airman X asked what was meant by "from the back." SrA Shozbot took the opportunity to enlighten Airman X as to the gist of this line of questioning by making the meaning perfectly clear - "that means do you like to get fucked in the ass from behind." Airman X responded "Sir, no, Sir."

    14. SrA Nuts then joined in and asked Airman X a series of questions. He asked "prisoner bitch, are you an anal paratrooper?’ "Do you like to suck dick?" At this point, Airman X told the guards that he was not homosexual and that he was, in fact, married [Footnote 2]. Everyone who heard Airman X state that he was married, responded with exaggerated shock and disbelief. SrA Nuts then asked what Airman X’s wife’s name was. Airman X told him that "Kim" is her name. SrA Shozbot then asked where Kim was. Airman X told them that she was stationed at Fischer AFB, finishing Tech School. SrA Shozbot then asked "what is she doing with a sorry mother-fucker like you? - She’s off fucking someone else right now while your ass is stuck in here." SrA Nuts, asked Airman X "well I’m going to go fuck her right now - do you think I can fuck her prisoner bitch? - give me her phone number so I can call her." Airman X, admirably, resisted providing his spouse’s phone number and endured repeated badgering and abuse on the subject. After being yelled at for several more minutes, and after Airman X realized that he had no ability to resist this abuse, he broke down and provided SrA Nuts with Kim’s phone number.

    15. After this incident, Airman X was paraded in front of the whole corrections staff and the rest of the prisoners, his towel continuing to fall off. SrA Jasper then escorted Airman X to the shower area and informed him that he had 5 minutes to take a shower. After about 2 minutes, SrA Jasper made Airman X get out of the shower, even though he still had soap in his eyes, under his arms, and around his neck. Airman X then started trembling and shaking, too scared to talk, and was required to attempt untying the many small, tight knots that his clothes had been tied into. After struggling with this task, Airman X and A1C Gunslinger were then forced to stand in front of the "name board" - a wall with pictures of all confinement personnel. They were required to learn the names of all the personnel in the confinement facility, and to repeatedly shout the names of each confinement staff member as loud as they could. Airman X and A1C Gunslinger were also required to perform several facing movements in front of the confinement staff, while continuing to shout the guard’s names. While this was occurring, SrA Jasper continuously shouted in both of their faces, and directly into their ears - to the point that Airman X felt intense pain in his head and that his eardrums felt like they were going to burst. At one point SrA Nuts made an effort to "correct" an error in pronunciation by screaming at Airman X. When SrA Nuts did this, he was so close to Airman X, that his lips were touching Airman X’s lips as he shouted at him. Both Airman X and A1C Gunslinger were ordered to refer to the confinement OIC as "Capt Kermit, our beloved corrections officer in charge."

    16. After this ordeal, Airman X and A1C Gunslinger were taken to Administrative Segregation where they were told to make their beds and straighten up their areas. The area had previously been vandalized by other inmates, by dumping litter and leaving the area in disarray. After Airman X and A1C Gunslinger made their beds and straightened up, other inmates were ordered to come into the cell and mess it up again. Airman X and A1C Gunslinger were then ordered to make their beds again. MSgt Burns then approached Airman X and made him sign a form, agreeing to perform work at the confinement facility.

    17. Airman X and A1C Gunslinger were then escorted to an area where they were instructed to "eat, but don’t taste" food that had been provided. At some point after this meal, Airman X found out that confinement personnel had instructed Prisoner Beaufort and Prisoner Waldo (two of the individuals confined at Nasty AFB) to spit in his food.

    18. SrA Nuts continued to threaten and upbraid A1C Gunslinger and Airman X for the rest of the day. He repeatedly made comments to the effect of threatening to sodomize and assault both of them. At various points in both the induction process, and in the continued pre-trial confinement of Airman X, he was asked about his involvement in this case. He was questioned without being advised of his rights, by various confinement personnel.

    19. This poor treatment continued for the duration of the time that Airman X spent at Nasty AFB Confinement Facility - in one form or another, he continued to be treated worse than would be expected for a military inmate, much less a pre-trial confinee.

    20. On or about 18 September 1998, Amn Tom Turkey was processed into the Nasty confinement facility. SrA Nuts ordered Amn Turkey to refer to himself as "dope head," and "rock star." Additionally, Amn Turkey was ordered to refer to himself as "prisoner bitch."

    21. Upon entering into the confinement facility, Amn Turkey was covered in toothpaste. Amn Turkey later explained to A1C Gunslinger and Airman X that SrA Nuts had rubbed toothpaste over his face. Additionally, prior to the toothpaste being rubbed in Amn Turkey’s face, he was ordered to shave his face without any shaving cream by Captain Kermit and TSgt Miverna.

    22. On or about 1 October 1998, A1C Gunslinger and Airman X witnessed an Asian-American Airman (from Goodfellow AFB) participating in the scared straight program, ordered to remove his clothes in front of the other confinees. This (Goodfellow AFB) Airman as ordered to bend his body over, and spread open his buttocks. He was then ordered to repeatedly yell, "now serving customer twelve." SrA Nuts forced the airman to do this in front of several other confinees.

    23. Following this incident, SrA Nuts ordered this airman to, while still naked, vigorously shake his body, in front of the other confinees. SrA Nuts also ordered this airman to march around the day room while performing a "goose-step" style march. SrA Nuts shouted that this Airman was a communist. The Airman complied with SrA Nuts’ orders. Captain Kermit was present during this event.

    24. Upon entering the day-room, Captain Kermit stated, "you don’t respect a fucking Captain when he comes into the room!" He then made all confinees stand at a position of attention for approximately five minutes. During this time, Captain Kermit threatened to "rip the entire confinement facility apart."

    25. On or about 1 November 1998, A1C Gunslinger and Airman X witnessed SrA Nuts call, an Airman "Biff" over to a telephone area in the guard station. SrA "Biff" complied with SrA Nuts’ order. SrA Nuts then asked for Amn "Biff’s girlfriend’s phone number. After receiving this information SrA Nuts called the number on a speaker phone. Confinees including A1C Gunslinger and Airman X overhead the ensuing conversation. SrA Nuts was unable to reach the girlfriend, but instead made conversation with the girl’s mother.

    26. Additionally, Airman X saw, SrA Nuts rap Amn "Biff" on his forehead with a closed fist. Several confinees who were present saw this event occur.

    27. SrA Nuts also required Amn "Biff" to wear a set of adult diapers in view of all confinees. On the back of the diapers was a ‘bullseye’ marker with the statement "insert dick" here attached. Amn "Biff was forced to continue marching around the day room while SrA Nuts threw ink markers at him. Amn "Biff" was hit by the thrown markers. SrA Nuts used a Polaroid camera to take pictures of Amn "Biff" wearing diapers. SrA Nuts also showed the other confinees these pictures.

    28. On or about 1300 hours, 25 November 1998, MSgt Tyner was processed into the confinement facility. A1C Gunslinger and Airman X were able to hear SrA Nuts, SSgt James Riley, TSgt Miverna, and others yelling obscenities at MSgt Tyner. MSgt Tyner was placed outside the building for about three hours. During these three hours, the individuals involved in the yelling would enter the confinement facility. Two of these individuals were recognized as prosecutors, both captains from the Nasty AFB legal office. Amn Turkey told A1C Gunslinger, Airman X, and other confinees that these prosecutors (later identified as Captain Ludwig and Captain Bond) prosecuted his case.

    29. MSgt Tyner was also forced to refer to himself as "prisoner bitch." When MSgt Tyner was finally allowed to enter the facility, he had his shirt pulled over his head and the insoles of his shoes taped to his head. They referred to him as "bunny rabbit" and forced him to hop through the facility day room.

    30. MSgt Tyner was then ordered to return to the outside of the building. Airman X witnessed MSgt Tyner outside of the confinement facility wearing no shirt or shoes. MSgt Tyner was braced at the entry black-line. The floor was wet as a result of SrA Nuts spraying MSgt Tyner with a ‘windex’ bottle. Upon realizing other confinees could see this activity, SrA Nuts ordered the confinees back inside. Captain Ludwig and Captain Bond were present during this activity as well, and they participated in yelling obscenities at MSgt Tyner.

    31. While in the visiting room, MSgt Tyner was ordered to "bend over and slap himself on the ass." He was also ordered to say "Mmmm…. Chuck wagon." The other inmates could hear and partially see this activity. It is believed that Captain Ludwig and Captain Bond were present during this incident as well.

    32. MSgt Tyner was admitted into the day room while naked. His head, from the neck up, was covered in shaving cream. SrA Nuts yelled directions to MSgt Tyner for taking a shower and admission to administrative segregation. He was told he had five minutes to shower, but, (like Airman X) he was only given roughly two.

    33. MSgt Tyner was also forced to memorize the corrections staff pictures. During this test when MSgt Tyner made mistakes, SrA Nuts rapped his fist against MSgt Tyner’ head. When MSgt Tyner requested water. SrA Nuts, responded by physically tilting MSgt Tyner’ head back, pouring water into his mouth, and yelling, "drink or drown bitch." A1C Gunslinger, Airman X, and other inmates witnessed this incident. MSgt Tyner was placed underneath a riot shield and the guards stomped on top of the shield. This instance was, shortly after the occurrence, within the knowledge of the inmates at the confinement facility.

    34. Implied instructions were given from SrA Nuts that no confinee was to speak of this or any other incident with any other confinee or service member. [Footnote 3]

    35. Guided by considerations of justice, and in the exercise of its supervisory powers, a United States Court may, within limits, dismiss charges against an accused. See e.g. United States v. Hastings, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978 (1983). Military judges enjoy the same discretionary authority as do other federal judges. See e.g. United States v. Nelson, 46 M.J. 764 (AFFCA 1997); United States v. Gaither, 41 M.J. 774 (AFCCA 1995). [Footnote 4]

    36. A valid consideration for dismissal of all charges and specifications against Airman X rests in the acknowledged philosophy that a court has a responsibility to deter illegal activity by the United States. See e.g. United States v. Payner, 447 U.S. 727, 735-36, n.8, 100 S.Ct. 2439, 2446-2447, n. 8, 65 L.Ed.2d 468 (1980). Moreover, there exist "situations in which the conduct of [the Government] is so outrageous that it bars the United States from invoking the judicial process." United States v. Russell, 411 U.S. 423, 93 S.Ct 1637 (1973), citing Rochin v. California, 342 U.S. 165 (1952). [Footnote 5]

    37. This motion concerns illegal pre-trial punishment and other illegal activity at the behest of the United States Government through the Nasty AFB confinement facility. The Defense respectfully requests this court to dismiss all charges and specifications against Airman X. Finally, this motion is timely brought per, United States v. Rozier, 41 M.J. 707 (ACMR 1995), and United States v. Huffman, 40 M.J. 225 (CMA 1994).

    38. Airman X respectfully requests this court to dismiss all charges and specifications based on the following: (1) the United States has violated his Eighth Amendment right against cruel and unusual punishment in several instances; (2) the United States has engaged in a pattern of illegal pre-trial punishment against Airman X.

    39. The Eighth Amendment prohibition against cruel and unusual punishment was originally drawn from the English Declaration of Rights of 1688. [Footnote 6] American courts universally expanded the prohibition’s concept from a historical interpretation (of what the founders meant by this prohibition), to the concept of a prohibition considered objectionable by contemporary society. See. e.g. Weems v. United States, 217 U.S. 349, 54 L.Ed 739, 30 S.Ct. 544 (1910). Moreover, the prohibition, against cruel and unusual punishment extends beyond physical brutality, to conditions that are detrimental to the mental and moral well-being of inmates. [Footnote 7]  Finally, the concept of cruel and unusual punishment is not limited to situations in which a particular inmate is subjected to punishment directed toward him as an individual, but rather to the overall confinement environment where offensive practices and conditions generally prevail. [Footnote 8] Thus, an offensive environment such as Airman X endured, can itself expose the inmate to cruel and unusual punishment. This would remain true even in the absence of directed physical or psychological degradation. However, since Airman X suffered both physical and psychological degradation, the latter point is moot.

    40. The primary test is whether conditions at the Nasty AFB confinement facility can be said to be cruel and unusual under contemporary standards of decency. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), see also, United States v. Martinez19 M.J. 744, 748 (ACMR 1984). The military judge must assess contemporary values as "standards of decency that mark the progress of a maturing society." See, Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct 2909, 2925, 45 L.Ed.2d 859 (1976). As a guidepost, contemporary values may be viewed through a hierarchical system beginning with Constitution, followed by the UCMJ, the MCM, departmental regulations, service instructions, and the common law. See, e.g. United States v. Romano, 46 M.J. 269, 274 (CAAF 1997).

    41. Finally, military jurisprudence traces its legitimacy to Article I, § 8, clause 14 of the Constitution, a social compact by which the citizenry agreed, "The Congress shall have power… to make rules for the government and regulation of the land and naval forces."United States v. Mahoney, 36 M.J. 679, 685 (AFCMR 1992). As the Air Force court aptly observed, "In our two centuries of separate government, military criminal law has evolved into a criminal law system that looks and acts like that which governs our civilian neighbors while remaining portable and responsive to the special conditions governing a military members life. Id. Thus, Mahoney dictates that, "the military judge stands between the vast authority of command, and the concise list of rights enjoyed by military members accused of crime." Id., at 686.

    42. Where an inmate is examined under dehumanizing conditions such as Airman X’s, such conditions violate the Eighth Amendment. See e.g. Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987); also,Frazier v. Ward, 426 F.Supp 1354 (D.C. N.Y. 1980). The excessive taunting of prisoners has also been found to violate the Eighth Amendment. See e.g.Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986). Certainly, Airman X suffered from excessive and debasing language directed at him by Nasty Confinement personnel. In addition, having other confinees spit into Airman X’s food also violates the Eighth Amendment.

    43. Airman X was prohibited from wearing clothing during periods in his pre-trial confinement status. This practice of taking away a prisoner’s clothing violates the Eighth Amendment because of both the tendency to deprive Airman X of his human dignity and as to imperil his health. See, Landman v. Royster, 333 F.Supp 621 (D.C. Va. 1971). Airman X’s experience is remarkably similar to the court’s holding in Landman. The facts in the instant case, as discussed above, describe instances of clothing deprivation, and forcing a naked Airman X to be exposed to other inmates and guards for no legitimate penal purpose.

    44. As noted above, Nasty corrections personnel had other prisoner’s spit into Airman X’s food during his time in administrative segregation. Federal Courts generally conclude prisoners are entitled to eat wholesome and nutritious food. See e.g. United States v. Kahane, 394 F.Supp 752 (S.D.N.Y. 1980); also, Sinclair v. Henderson, 331 F.Supp 1123 (D.C. La. 1971); also, Holt v. Sarver, 309 F.Supp 362 (D.C. Ark 1970, aff’d 442 F.2d 304 (8th Cir 1971). The United States cannot make a good faith argument that human saliva spit into another prisoner’s food is not cruel and unusual punishment within the holding of the above cases.

    45. Under the Fifth, Sixth, discussed infra, and Eighth Amendments to the Constitution, the intentional deprivation of access to counsel by the Nasty AFB confinement facility was per seunconstitutional. Confinement personnel repeatedly discussed Airman X’s case before him, interrogated him on the merits of his case, and threatened him. This unconscionable activity occurred despite his being represented by counsel. It is obvious that the government was aware of this representation, since Airman X was represented by counsel in his pre-trial confinement hearing. Airman X has a Sixth Amendment right to counsel. See Gideon v. Wainright, 372 U.S. 335 (1963). This court must take note of the strong language in Gideon:

The right of one charged with a crime may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.

Id.,at 344.

    46. This right to counsel must remain "untrammeled and unimpaired." See e.g. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed 680 (1942) [emphasis added]. The Nasty Confinement personnel intentionally created an environment of reluctance for pre-trial confinees to consult with counsel. Moreover, by their threats and badgering of Airman X – among other pre-trial confinees – Nasty AFB, confinement personnel attempted to unlawfully investigate for potential evidence against Airman X.

    47. The incessant badgering of Airman X by Nasty confinement personnel was also an intentional interference with the Attorney-Client privilege. See e.g. United States v. Hanna, 2 M.J. 69 (CMA 1990). Nasty AFB confinement personnel attempted to coerce Airman X into discussing the merits of his case. Such coercion was done without further apprising him of his article 31 rights, and was nothing less than an attempt to "tire" him into making a confession. See e.g. Michigan v. Jackson, 106 S.Ct 1404 (1986); and Aschcraft v. Tennessee, 322 U.S. 143 (1944); United States v Bubonics, 40 M.J. 734 (NMCMR 1994); United States v. Murphy, 39 M.J. 1 (CMA 1994).

    48. Finally , the 25 November 1998 active presence of Captain Bruce Ludwig and Captain James Bond, (Nasty AFB assistant staff judge advocates) equated to a further intimidation factor. Their presence and participation in MSgt Tyner’ induction lent illegal credence to the overall abusive environment at the facility. Thus, Airman X, and the other confinees, were increasingly reluctant to discuss the Nasty AFB confinement facility environment with their respective attorneys. Yet, the Sixth Amendment is interpreted by the Court to ensure full, frank, and open discussion between accused persons and their defense counsels. See, United States v.Zolin, 491 U.S. 554 (1989); Upjohn Co., v. United States, 449 U.S. 383 (1981). [Footnote 9]

    49. The hierarchical system noted in United States v. Romano (discussed supra) serves as a guidepost in determining whether the Airman X’s Eighth Amendment rights were violated. Additionally, Article 55, UCMJ, 10 U.S.C. § 855 [Footnote 10], also prohibits cruel and unusual punishments, United States v. Warner, 25 M.J. 64 (CMA 1987). In the instant case, Airman X must be considered a victim under Articles 93 (Cruelty and Maltreatment), 128 (Assault), and 134 (Indecent Language). As such his status as a victim clearly indicates a violation of the prohibition against cruel and unusual punishment.

    50. Airman X was repeatedly referred to by Nasty confinement personnel as "Prisoner Bitch." Additionally, Nasty AFB confinement personnel threatened Airman X - they threatened to sodomize him and to inflict bodily harm upon him. This type of language is prohibited under Article 134, UCMJ. See, United States v. French, 31 M.J. 57, 60 (CMA 1990). It also violates Article 134, UCMJ, Communicating a Threat. See e.g. United States v. Alford, 32 M.J. 596 (ACMR 1991). UCMJ Article 93 also applicable to the instant case, prohibits cruelty and maltreatment. Airman X is a victim under both Article 93 and Article 134 of the UCMJ and as such been forced to live under conditions more than amounting to illegal pre-trial punishment. Additionally forcing Airman X to remain naked for prolonged periods of time, purporting to engage in a pursuit of sexual intercourse with his wife, and repeatedly addressing Airman X with homosexual references and derisive remarks, all violated Article 93, UCMJ.

    51. Airman X was repeatedly assaulted, in violation of UCMJ Article 128, when threatened him with the fear of imminent bodily harm while screaming in his ears, and screaming into his face to the point where Airman X trembled in fear.

52. RCM 305(f) "Punishment Prohibited" reads in pertinent part:

Pretrial restraint is not punishment and shall not be used as such. No person who is restrained pending trial may be subjected to punishment or penalty for the offense which is the basis for that restraint. (R.C.M. 305(f)) § II-21 (1998).

    53. The public humiliation, assaults, taunting, and overall abusive environment clearly violate RCM 305(f). Indeed, even public humiliation and denunciation is tantamount to pretrial punishment. See e.g. United States v. Stamper, 39 M.J. 1097 (ACMR); United States v. Carr, 37 M.J. 987 (ACMR 1993 United States v. Suzuki, 14 M.J. 491 (CMA 1983) and United States v. Hatchell, 33 M.J. 839 (ACMR 1991). Certainly, the Nasty AFB confinement facility environment of fear and coercion was tantamount to pre-trial punishment.

    54. Airman X’s due process rights were violated when the Nasty Confinement facility failed to follow Department of Defense Directives (DoDD) and Air Force Instructions (AFI). See e.g. United States v. Sanchez, 40 M.J. 508,512-13 (ACMR 1994), United States v. Vogan, 35 M.J. 32 (CMA 1992).

    55. DoDD 1325.4, Confinement of Military Prisoners and Administration of Military Correctional Programs and Facilities (19 May 1988) charges each service secretary with the duty of issuing confinement regulations. Ch.A.2. DoDD 1325.4 is further concerned with ensuring the health and welfare of confinees. For example, chapter E establishes activities for morale. Chapter G also expresses concern for the health and sanitary conditions of confinees. "Health" by definition includes psychological well being or mental health. Clearly, Airman X, among the other confinees was subjected to conditions designed to erode his mental well-being.

    56. AFI 31-205, Security and Corrections Program (1 March 1997) establishes regulations for confinement facilities. Ch.14 charges the Nasty AFB corrections program to ensure, "security, safety, and comfort measures exist in their corrections facilities." Id. The intentional creation of an environment of fear and abuse by Nasty AFB corrections personnel clearly violated the spirit of AFI 31-205 Ch. 14.

    57. AFI 31-205, Ch.32.para. 1.2 ensures communications with defense attorneys are unhampered and untrammeled. As noted from the above facts, Nasty AFB confinement personnel intentionally impeded discussions between confinees and their respective defense counsels through creating an abusive environment, and by threatening confinees with bodily harm. Again, these threats were not idle. The ill-treatment of A1C Gunslinger, Airman X, MSgt Tyner, and all other confinees, reinforced a notion that full, frank, and open discussions with defense counsel were severely at risk.

    58. AFI 31-205 charges confinement personnel to maintain prisoner control, "by the impartial enforcement of reasonable rules and regulations necessary for safe and orderly operation of confinement facilities." Id. at Ch.38. Chapter 38 further charges that prisoners should not be arbitrarily woken during sleeping hours unless for reasons or escape or emergency. Confinees regularly found their sleep impeded by Nasty AFB confinement personnel.

    59. AFI 31-205 states, "only physicians or physician assistants may physically examine interior body openings." Id. at Ch.41.2. Airman X was ordered to open his rectum and display his genitalia to Nasty AFB confinement personnel. There was no legitimate medical or search purpose behind this order.

    60. AFI 31-205 emphatically cautions confinement personnel "against engaging in activity which has the potential to bring criticism to the United States military or violates Air Force standards of conduct." Id. at Ch 51.2.8. The above-detailed litany of human degradations and unreasonable excesses intentionally perpetrated on Airman X, as well as the other Nasty AFB confinees, by Nasty AFB personnel (including the visiting assistant staff judge advocates) not only opens the United States military to intense public criticism, it undermines public confidence in the military corrections program. Furthermore, such activities stretch far beyond any acceptable standards of conduct.

    61. Finally, AFI 31-205 states, "The [Air Force Corrections Program]... requires positive programs to preserve and strengthen a prisoner’s dignity." Id., at § A, para. 2. The United States, cannot in good faith, argue that conditions at the Nasty AFB confinement facility upheld the fundamental philosophy of the Air Force Corrections Program.

    62. A third recitation of the applicable facts is unnecessary to prove illegal pre-trial punishment. Pretrial punishment is forbidden by Article 13 UCMJ, 10 U.S.C. § 813 (1988) and RCM 305(f) The court should also refer to several court decisions such as Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979); United States v. Folk, 37 M.J. 851 (AFCMR 1993); United States v. James, 28 M.J. 214 (CMA 1989); and, United States v. Palmiter, 20 M.J. 90 (1980). To quote the Air Force Court of Criminal Appeals, "[illegal pre-trial punishment] is a very serious matter." Folk, at 37 M.J. 853. Specifically, Article 13 reads:

No person, while being held for trial may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to ensure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

    63. There are no facts to indicate Airman X had any disciplinary infractions. Nor had any of the other pre-trial and post-trial confinees during the time period noted been responsible for any disciplinary infractions.

    64. Notwithstanding threats of physical harm to Airman X, the abusive language he endured alone is sufficient to establish illegal pretrial punishment. As previously stated, public humiliation and denunciation is tantamount to pretrial punishment. United States v. Stamper, 39 M.J. 1097 (ACMR); United States v. Carr, 37 M.J. 987 (ACMR 1993) United States v. Suzuki, 14 M.J. 491 (CMA 1983) and United States v. Hatchell, 33 M.J. 839 (ACMR 1991). Finally, this court must take note of the concern of the Air Force Court of Criminal Appeals for the conditions of confinement. See e.g. United States v. Haymaker, 46 M.J. 757 (AFCCA 1997).

    65. As noted above, this request for complete dismissal of all charges and specifications against Airman X comports with the Court’s holding that a court has a duty to deter illegal activity by the United States. Moreover, the Court has acknowledged that such outrageous conduct must present a bar against the United States invoking the judicial process. The United States has repeatedly violated Airman X’s Eighth Amendment right against cruel and unusual punishment; trammeled upon his right to counsel; violated provisions of the UCMJ through assault, cruelty and maltreatment, communicating threats, and indecent language; violated department regulations and service instructions to his detriment; and engaged in a clearly wanton pattern of illegal pre-trial punishment against him. This illegal activity should result in the above-requested dismissal.

Respectfully Submitted,

KIRK B. OBEAR, Capt, USAF
Defense Counsel [Footnote 11]

cc: Trial Counsel

Footnote 1 : SrA Nuts is about 5’8", and weighs about 290 lbs. Return to Text.

Footnote 2 : Airman X is married to another active duty military member, A1C Kim X. At the time of this incident, A1C Kim X was pregnant - expecting twins. She had experienced a difficult pregnancy, and Airman X was very distraught over the condition his wife was in. Return to Text.

Footnote 3 : Implicit in this command was not to discuss any of these matters with defense counsel. Return to Text.

Footnote 4 : See also, e.g. United States v. Mahoney, 36 M.J. 679, 685-87 (AFCMR 1992); United States v. Witherspoon,36 M.J. 252 (CMA 1983); United States v. Griffith, 27 M.J. 42 (CMA 1988). Finally, also see, United States v. Haymaker, 46 M.J. 757 (AFCCA 1997)[Air Force Court expresses concern over post-trial prison conditions]. Return to Text.

Footnote 5 : See e.g. also; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); United States v. Childs, 5 F.3d 1328 (9th Cir. 1993); United States v. Smith, 924 F.2d 889 (9th Cir 1991); particularly, United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert denied 430 U.S. 965, 52 L.Ed.2d 356, 97 S.Ct 1644 (1977); United States v. Stone, 40 M.J. 420 (CMA 1994); United States v. Hart, 29 M.J. 407 (CMA 1990). Return to Text.

Footnote 6 : See, Generally, Furman v. Georgia, 408 U.S. 238, citing, Anthony Granucci," Nor Cruel of Unusual Punishments Inflicted": The Original Meaning, 57 Cal L.Rev. 839. Return to Text.

Footnote 7 : Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); also, Wright v. McMann, 387 F.2d 519 (2d. Cir. 1967); also, Holt v. Sarver, 300 F. Supp 825 (D.C. Ark. 1969); also, Jordan v. Fitzharris, 257 F. Supp 674 (No.D.C. Cal 1966). Return to Text.

Footnote 8 : See e.g. Nami v. Fauver, 82 F.3d 63 (3rd Cir. 1996), ["double-celling" inmates in certain instances violates Eighth Amendment]; also, Williams v. Greifinger, 97 F.3d 699 (2d. Cir 1996)[deprivation of exercise constituted cruel and unusual punishment]; also, McCord v. Maggio, 927 F.2d 844 (5th. Cir 1991), [prison sleeping conditions found to be in violation of Eighth Amendment]; also,Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); also, Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983), cert denied 80 L.Ed.2d 143 (1984); also, Blake v. Hall, 668 U.S. 52 (1st Cir. 1981) cert denied 456 U.S. 983, 72 L.Ed.2d 862, 102 S.Ct 2257 (1982),[unsanitary conditions caused by other inmates constituted Eighth Amendment violation]; also, Rozecki v. Gaughan, 459 U.S. 6 (1st Cir. 1972)[extreme heating and freezing conditions were per se Eighth Amendment violation]; also, Gonyer v. McDonald, 874 F.Supp 464 (D.C. Mass 1995), [asbestos contact a violation]; also, Hutchings v. Corum, 501 F.Supp 1276 (W.D.C. Mo, 1980)[inadequate exercise conditions]; also, MCI Concord Advisory Board v. Hall, 447 F.Supp 398 (D.C. Mass 1978), [two inmates residing in cell built for one a violation]; Jones v. Wittenberg, 323 F. Supp. 93 (D.C. Ohio 1971) aff’d 456 F.2d 854 (6th Cir. 1972)[unreasonablerestrictions on exercise opportunities]. Return to Text.

Footnote 9 : Both Zolin v. United States, and Upjohn v. United States state Sixth Amendment right to counsel ensures the attorney client privilege through a discussion of unremunerated rights. In effect, Nasty AFB confinement personnel not only trammeled the Sixth Amendment, they also attempted to interfere with an attorney-client privilege. The right to counsel and the attorney-client relationship have an intertwined history. See Wigmore, Evidence, § 2290 (McNaughton rev. 1967) Return to Text.

Footnote 10 : Article 55 reads in pertinent part:

    Punishment by flogging, or by branding, marking, tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to this chapter. (Emphasis added) Return to Text.

Footnote 11 : A substantial portion of this motion was researched and drafted by Captain Joshua Kastenberg, United States Air Force. Return to Text.

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