FORECITE National™ --
MILITARY: Cruel and Unusual Punishment - 8th Amendment Violations - Detention
By Kirk Obear
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).
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.
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.
Brief Bank # B-930 (Re: Cruel and Unusual Punishment
- 8th Amendment Violations - Detention].)
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reserves all rights. It is published by juryinstruction.com with permission.
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in the material below.
NOTE: The text of the footnotes appear at the end of the
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
Motion to Dismiss
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
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
3. Nasty Air Force Base and its
confinement facility is, for the purposes of this motion – and in law, the
United States Government.
II. Induction into the Confinement Facility
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
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
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,
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
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
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.
III. Induction of Other Confinees and "Scared
Straight Program Recipients"
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
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
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.
IV. Induction of MSgt Tyner
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.
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
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
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
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.
A. Conditions at the Nasty AFB Confinement
Facility violated the Eighth Amendment’s prohibition against cruel and
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
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.,
(1) Constitutional Violations
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.
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
(2) UCMJ Violations
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.
(3) Manual for Courts Martial Violations
52. RCM 305(f) "Punishment Prohibited" reads in
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.
(4) Regulatory and Instructional Violations
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
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
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
B. The United States has engaged in a pattern of
illegal pre-trial punishment against Airman X
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
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
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.
KIRK B. OBEAR, Capt, USAF
Defense Counsel [Footnote
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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