Cases about invocation of the right to counsel during custodial interrogation are cat nip to appellate judges. Think of how rarely the Supremes grant cert in CAAF cases. So rarely that the Kabul Klipper has been waiting almost SIX YEARS since bestowing the last Golden CAAF award. See O'Connor v. United States, 535 U.S. 1014 (2002) (GVR). There are probably more trees at Dolly Sods with branches on both their west and east sides than there have been military cert grants. And yet the Supremes have granted cert in three military cases dealing with invocation of counsel during custodial interrogation. Indeed, the very first cert grant under the Military Justice Act of 1983 was a GVR in an invocation case. See Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984)). One of the eight case in which the Supremes have granted plenary review of CMA/CAAF decisions was a rights invocation case. Davis v. United States, 512 U.S. 452 (1994). And the Supremes have GVRed in at least one additional military invocation case. Jordan v. United States, 498 U.S. 1009 (1990) (GVRing for further consideration in light of Minnick v. Mississippi, 498 U.S. 146 (1990)).
Added to that, Bonilla is a split published opinion. Plus, it's really interesting. And the Coast Guard Court's decision is deeply and disturbingly wrong.
Seaman Bonilla was already facing marijuana use and distribution changes -- and already represented by a military lawyer in connection with those charges -- when he was apprehended for communicating a threat to kill a senior chief. But when a Coast Guard Police Department officer advised him of his rights, he didn't tell him the offense of which he was suspected. Seaman Bonilla said he wanted a lawyer.
About five hours later, two CGIS agents showed up in the interrogation room. They knew Bonilla had invoked. The Bonilla majority tells us: "As a result, they did not direct any questions to Appellant, but the two agents engaged in idle conversation about the case. Special Agent Mullinax testified that he hoped this conversation would result in SN Bonilla reinitiating discussions about the case." And, what do you know, he was right. "Within five minutes, Appellant asked one of the agents, 'Sir, can I ask what this is about?' The agents replied that they could not speak with Appellant unless they read him his rights and he was willing to waive his rights. Appellant agreed to do so." Bad decision.
Relying primarily on Oregon v. Bradshaw, 462 U.S. 1039 (1983), Judges Kantor and Tucher reject a challenge to the conviction and award a best supporting actor Oscar to Special Agent Mullinax. Oh, they offer the obligatory "tsk, tsk," calling the special agents' conduct "boderline." But ultimately they hold that Seaman Bonilla reinitiated.
If a five-minute set piece conversation between two special agents played out in a small interrogation room conducted for the admitted purposed of getting the suspect to start talking doesn't constitute de facto interrogation, then we should just abandon the charade and say that interrogators are free to try again after the accused invokes. That would be a perfectly defensible rule. To turn again to David Simon, if Miranda was
an attempt to "dispel the compelling atmosphere" of an interrogation, then it failed miserably. And thank God. Because by any standards of human discourse, a criminal confession can never truly be called voluntary. With rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art. That is the essence of interrogation, and those who believe that a straightforward conversation between a cop and a criminal--devoid of any treachery--is going to solve a crime are somewhere beyond naive. If the interrogation process is, from a moral standpoint, contemptible, it is nonetheless essential.
David Simon, Homicide 199-200 (1991).
That makes a lot of sense. And maybe Edwards v. Arizona, 451 U.S. 477 (1981), should be overturned to allow Special Agents Mullinax and Head to repeat their performances as often as your local dinner theater presents Camelot. But as long as Edwards remains the governing law to which every court in this land owes fealty, we shouldn't pretend that the "Mullinax and Head Show" meets its requirements.
If CAAF takes this case, perhaps it will end up at the Supremes. Perhaps it will lead to Edwards being overturned. Or perhaps the Supremes will clarify that Oregon v. Bradshaw doesn't permit staging the "Mullinax and Head Show" to coax the suspect to reinitiate, leading Justice Scalia to decry the addition of another tower onto the "veritable fairyland castle of imagined constitutional restriction upon law enforcement." Minnick, 498 U.S. at 166 (Scalia, J., dissenting). But as long as governing law provides that a suspect who has invoked can't be interrogated without counsel unless the suspect "initiates further communication, exchanges, or conversations with the police," Edwards, 451 U.S. at 485, we shouldn't pretend that the "Mullinax and Head Show" doesn't violate that rule.
Chief Judge McClelland dissents on this point, with an interesting twist. Her prime concern is with the initial failure to advise Seaman Bonilla of the offense of which he was suspected, as required by Article 31 and, Chief Judge McClelland argues, R.C.M. 304(a). It was only that failure that led Seaman Bonilla to ask what he was being held for. And asking for that information to which he was legally entitled should not be considered reinitiation of interrogation.
Yeah, as CAAF reminded us in Freeman, it's okay for interrogators to lie to the suspect. And Justice Scalia may be right that we should "rejoice at an honest confession, rather than pity the 'poor fool' who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it." Minnick, 498 U.S. at 167 (Scalia, J., dissenting). And, as David Simon maintains, overlooking the immorality of the interrogation process may be essential. But we shouldn't pretend that our system is adhering to the law when it isn't. If Mr. Bumble is right that "the law is a ass," then call the law a ass. Write a dubitante majority opinion busting the conviction if that makes you feel better. But don't call an ass a thoroughbred and then enter it in the Preakness Stakes -- not even if you call it a "borderline" thoroughbred.