Serious Offense: Considering the Severity of the Charged Offense When Applying the Military Pre-Trial Confinement Rules

• Author: Major Ryan W. Leary
• Pages: 131-152

2014] OFFENSES & PRE-TRIAL CONFINEMENT 131

SERIOUS OFFENSE: CONSIDERING THE SEVERITY OF

THE CHARGED OFFENSE WHEN APPLYING THE

MILITARY’S PRE-TRIAL CONFINEMENT RULES

MAJOR RYAN W. LEARY*

I. Introduction—An Empty Chair

Where is he? The courtroom clock chews through the minutes, and

when the start time for the court-martial arrives, the Accused’s chair is

empty. The government counsel look at the Accused’s chair, glance at

the Accused’s commander, share a knowing look with defense counsel,

and look back at the empty chair. On the second day of the trial of

Sergeant (SGT) Kirk Evenson, it becomes apparent to all parties in the

courtroom that the Accused will not be present to face charges of raping

and sexually assaulting a minor child. After a brief hearing outside the

presence of the panel, the military judge allows the government to

proceed with its case against SGT Evenson in absentia. Following the

close of evidence, an enlisted panel convicts SGT Evenson of raping,

sodomizing, and sexually assaulting a minor child, and subsequently

sentences him to confinement for life without the possibility of parole.1

* Judge Advocate, U.S. Army. Presently assigned as Associate Professor, Contract and

Fiscal Law Department, The Judge Advocate General’s School, U.S. Army,

Charlottesville, Virginia. LL.M., 2013, The Judge Advocate General’s School, U.S.

Army, Charlottesville, Virginia; J.D., 2007, Campbell University; B.A., 2001, U.S.

Military Academy. Previous assignments include Company Executive Officer, Alpha

Company, 319th Military Intelligence Battalion, Fort Bragg, North Carolina, 2002–2003;

Battalion Intelligence Officer, 51st Signal Battalion, Fort Bragg, North Carolina 2003–

2004; Operational Law Attorney, XVIII Airborne Corps, Baghdad, Iraq, 2008–2009;

Trial Counsel, XVIII Airborne Corps, Fort Bragg, North Carolina 2009–2010; Brigade

Judge Advocate, 4th Infantry Brigade Combat Team, 1st Infantry Division, Fort Riley,

Kansas, 2010–2012. Member of the bar of North Carolina. This article was submitted in

partial completion of the Master of Laws requirements of the 61st Judge Advocate

Officer Graduate Course. The author wishes to thank the following individuals who

assisted in the drafting of this article: Lieutenant Colonel Benjamin K. Grimes, Major

Keirsten H. Kennedy, Major Laura A. O’Donnell, Captain Justin C. Barnes, and Mr.

Charles J. Strong.

1 This assertion is based on the author’s recent professional experiences as the Brigade

Judge Advocate, 4th Infantry Brigade Combat Team, 1st Infantry Division, Fort Riley

Kansas from June 6, 2010 to July 10, 2012 [hereinafter Professional Experiences]. As

the co-counsel for the Government in United States v. SGT Kirk Evenson, I was involved

in and present during all facets of the case. I personally participated in the presentation

of evidence against Sergeant (SGT) Evenson and was in the courtroom, at the counsel’s

table, when SGT Evenson failed to report to the second day of his trial and when the

panel delivered its findings and sentencing in this case.

132 MILITARY LAW REVIEW [Vol. 221

The day after SGT Evenson was convicted of these heinous crimes,

he was discovered hiding-out in a nearby hotel. In short order, countless

local and federal law enforcement officers descended upon the hotel. In

a scene befitting an action movie, police cars and emergency vehicles

littered the hotel parking lot, snipers leveled their rifle scopes on the

hotel windows, a special weapons and tactics (SWAT) team clad in body

armor hustled into their positions, and the heads of several agencies

huddled in a makeshift command center in the hotel lobby to prepare for

the ensuing confrontation.2 After a protracted stand-off, law enforcement

officers cut a hole in the hotel door and forced their way into SGT

Evenson’s room.3 The officers, armed with MP5s and side-arms,

tactically cleared the room and demanded SGT Evenson peacefully

submit himself to arrest.4 But SGT Evenson resisted, and he was shot

twenty-one times, dying as a result.5 The book abruptly closed on SGT

Evenson’s life, and the questions began to mount. How could this

happen? Was this result avoidable? Why was SGT Evenson not placed

in pre-trial confinement when facing such serious charges?6

The purpose of this article is to examine the current Rules for

Courts-Martial (RCM) as those rules pertain to pre-trial confinement in

cases like SGT Evenson’s. The circumstances surrounding SGT

Evenson’s trial and his ultimate fate serve as a vehicle for a broader

discussion of how the military pre-trial confinement system, when

2 Id. While traveling to Denver, Colorado, during time off from work for Labor Day

Weekend, the lead Criminal Investigative Division (CID) agent contacted the author and

informed me that they located SGT Evenson at the Holiday Inn Express in Abilene,

Kansas. As Abilene was along the route to Denver, I requested access to the scene in

order to provide local and federal law enforcement agents with any background

information they might need in their efforts to defuse the stand-off. I was allowed to

enter the hotel lobby and received a briefing from the tactical commander.

3 See Captain James E. Jones, Army Regulation 15-6 Report of Investigation on the

Circumstances Surrounding the Death of Sergeant Kirk Evenson exhibit L (19 June 2012)

[hereinafter CPT Jones, AR 15-6 Investigation] (on file with the Admin. Law Div.,

Office of the Staff Judge Advocate, 1st Infantry Div., Fort Riley, Kan.).

4 Id.

5 See id.; see also Associated Press, AWOL Riley Sergeant Killed During Standoff, ARMY

TIMES (Sep. 2, 2011, 7:27 PM), http://www.armytimes.com/news/2011/09/ap-awol-riley-

sergeant-killed-during-standoff-090211/; Ft. Riley Soldier on Trial for Child Rape Killed

in Standoff, WIBW (Sep. 1, 2011, 7:57 PM), http://www.saljournal.

com/news/story/soldier-killed-9-1-11; AWOL Fort Riley Soldier Dies After Police

Standoff in Abilene, SALINA POST (Sep. 2, 2011), http://salinapost.com/

2011/09/02/awol-fort-riley-soldier-dies-after-police-standoff/.

6 See Soldier Killed in Standoff Hadn’t Been Confined, SALINA J. (Sep. 2, 2011, 3:03

AM), http://www.saljournal.com/news/story/soldier-killed-9-1-11.