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Confinement Order and Pretrial Confinees - 14135_186
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Sample Letter to Initial Review Officer
prepared  to  send  a  knowledgeable  representative  to  the hearing held by the initial review officer (IRO). This representative   should   be   cognizant   of   (1)   the circumstances regarding the charges; (2) the accused’s past  history  for  reliability;  and  (3)  unauthorized absences. After the hearing by the IRO, the command will receive a memo either allowing the confinement to continue  or  ordering  the  accused’s  release. If the member is ordered released, the command must comply. A  lesser  form  of  restraint  may  be  imposed,  but reconfinement  may  not  occur  without  further misconduct or new evidence that would impact on the accused’s reliability. If pretrial confinement is to extend to 30 days, permission for continued confinement must be  obtained  from  the  cognizant  GCM  authority.  Make sure permission is received before the expiration of the 30th  day,  and  the  request  must  be  reviewed  every  30 days after that. LETTER TO INITIAL REVIEW OFFICER.— The OEGCMJ at the location of the confinement facility designates one or more officers of the grade of O-4 or higher  to  act  as  the  IRO  for  purposes  of  pretrial confinement. The  IRO  maintains  a  copy  of  the documents  considered  and  the  memorandum  prepared under R.C.M. 305(i)(6) in each case until completion of appellate review. The IRO then sends a copy of the documents  considered  and  the  memorandum  prepared to  the  OEGCMJ  from  whom  he  or  she  derived  the authority  as  IRO. The officers designated as IROs should be neutral and detached, should be selected for their maturity and experience, and, if practical, should have had command experience. A sample letter from a CO to an initial pretrial review officer is shown in figure 6-22. MATTERS CONSIDERED.— The review by the IRO is a review of the memorandum submitted by the accused’s commander. Additional written matters may be considered, included any submitted by the accused, The accused and his or her counsel, if any, can appear before the IRO and make a statement, if possible. A representative of the command may appear before the IRO  to  make  a  statement.  In  most  cases,  this representative will be you or one of your subordinates. The IRO may, for good cause, extend the time limit for completion of the initial review to 10 days after pretrial  confinement  is  imposed. The   requirements   for   confinement   discussed previously need not be proven beyond a reasonable doubt, but by a preponderance of the evidence. ACTION  OF  THE  IRO.—  When   the   IRO completes the review, he or she approves continued confinement  or  orders  immediate  release.  The  IRO writes  a  memorandum  that  contains  conclusions  and supporting factual findings. A copy of the memorandum and all documents considered in each case are kept until completion of appellate review. Copies are given to the accused or the government on request. Your office must receive and keep copies for future reference and as part of the accused’s court-martial file. The IRO will, after notice to the parties, reconsider the decision to confine the accused upon a request based upon  significant  information  not  previously  considered. If the decision of the IRO is for immediate release, he or she will so notify the accused’s CO. The CO then directs  the  appropriate  corrections  officer  to  release  the accused  immediately,  with  a  copy  of  the  release  order forwarded to the OEGCMJ. The decision of the IRO to release the accused is final and binding upon the CO, corrections officer, and OEGCMJ.  No  administrative  appeal  of  the  IRO’s decision is authorized or permissible. The command may not re-confine unless: discovery of a new offense that may authorize pretrial  confinement;  or discovery  of  any  other  evidence  establishing  that the accused will flee to avoid trial; or discovery of any other evidence establishing both a  lawful  basis  and  a  need  for  pretrial confinement. Once  charges  for  which  the  accused  has  been confined are referred to trial, the military judge reviews the  propriety  of  pretrial  confinement.  The  IRO  is divested  of  authority  to  order  the  accused’s  release  or continued  pretrial  confinement  when  the  charges  are referred to a court-martial. EVIDENCE Another very important duty before the trial is the preservation  of  evidence.  Evidence  must  be  maintained until retrieved for trial. Every NLSO has to deal with evidence  used  in  cases  tried  by  court-martial.  The proper identifying, safeguarding, and maintaining of this evidence is a critical task that must be performed efficiently  and  accurately.  Sometime  in  your  LN  career, you  will  hear  of  tales  of  evidence  that  were inappropriately safeguarded. To avoid this, you will learn in this section the importance of proper procedures 6-35

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