United States v. Holloway

I concur but write separately to urge the Court of Military Appeals to re-examine its holding in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976) that a commanding officer is not “neutral and detached” for the purpose of making the initial probable cause determination to justify pretrial detention under Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

The commanding officer is already required by Article 9, UCMJ, 10 U.S.C. § 809 and Rule for Courts-Martial (R.C.M.) 305(h)(2) to make this very determination before he orders a person into pretrial detention or reviews the order…