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WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.United States v. Delarosa, __ M.J. ___, No. 08-0390/NA (C.A.A.F. Sept. 4, 2008).
The case involves the death of Petty Officer Delaroas's five-month-old son. The members found him guilty of aggravated assault, while acquitting him of murder, maiming, and another aggravated assault specification.
NMCCA's unpublished decision in the case is available here. It begins inauspiciously by noting that "[t]he appellant's motion for oral argument is denied." Id., slip op. at 2 n.1. Both the majority and the concurring opinions characterize the issue the case presents as one of first impression. WHY would NMCCA reject oral argument in this obviously important case? I wonder what position Code 46 took on the oral argument request. Do any of our readers know?
The opinion then proceeds to adopt a bizarre method of referring to the victim in the case. It first identifies him by name as Petty Officer Delarosa's "5-month-old son, Miguel Delarosa (MD)." It then proceeds to refer to him by his initials. Presumably usually when an appellate decision refers to a victim by his or her initials, it's to protect the victim's privacy. That role isn't really accomplished when the opinion expressly identifies the victim by name. Nor, sadly, is there any need to protect Miguel's privacy since he died. Use of the initials thus becomes a strange dehumanizing shorthand for referring to a person. Again, why? (And for comparison purposes, the opinion identifies the two Norfolk detectives involved in the case only by the first initial of their last name.)
The central issue in the case involves Petty Officer Delarosa's actions when he was filling out a written Miranda advice form at a civilian police station before being interviewed. According to the civilian detectives' account, Petty Officer Delarosa had indicated an eagerness to discuss his son's death with the civilian police detectives. They proceeded to Mirandize him. After writing "YES" next to the questions asking about whether he understood his Miranda rights, Petty Officer Delarosa wrote "NO" next to the block asking if he wanted to waive those rights and make a statement. This left the detectives confused, since they understood that he wanted to make a statement. One of the detectives asked him why he wrote "NO" after saying he wanted to make a statement. Petty Officer Delarosa answered that he wanted to talk about his son's death, but wanted a command representative to be present. The detective responded that he didn't have a right to have a command representative present, but reminded him that he was entitled to consult with a lawyer. The detectives say that Petty Officer Delarosa never asked for a lawyer, but reiterated his request for a command representative to attend the interrogation. According to their testimony, the detectives told Petty Officer Delarosa that based on his answers on the form, they could no longer talk with him. They left him in the interrogation room and told him that if he changed his mind and wanted to talk with them, he should knock on the door.
One of the detectives testified that about 35 minutes later, he opened the door to the interrogation room and asked if Petty Officer Delarosa would be willing to take a polygraph. Petty Officer Delarosa said he would. About two hours later, a detective again opened the door and asked if Petty Officer Delarosa needed anything. He asked to use the bathroom. Petty Officer Delarosa never knocked on the interview door -- which the detectives had told him to do if he changed his mind and wanted to resume the interrogation.
In an exchange that followed Petty Officer Delarosa's request to use the head, he indicated that he wanted to talk to the detectives:
As Detective M was taking the appellant to the bathroom, the appellant asked if he could make a telephone call. Detective M replied that he could, but would have to wait until Detective M was finished with something that he was doing. When the appellant asked what Detective M was doing, the detective said that the appellant’s wife was at the police station and preparing to take a polygraph test. The appellant asked to see his wife and was told that he could after her polygraph test was completed. The appellant then told the detective that he now wanted to talk. Detective M indicated that the appellant would first have to be re-advised of his Miranda rights. The appellant stated that he had been confused about the form and wished to waive his rights and take a polygraph test.Petty Officer Delarosa was readvised of his rights and he waived them all. Before taking a polygraph, he was again advised of his rights and again waived them all. After taking a polygraph, he confessed to having shaken his son, but claimed it was in an attempt to wake him. He denied shaking his son earlier in the evening to try to stop him from crying. He was then reinterrogated and made an audiotaped statement, in which he admitted shaking his son to try to stop him from crying and then shaking him again later to try to wake him up.
In the defense's version of the interrogation, Petty Officer Delarosa expressly asked for a lawyer but was told by one of the detectives that he wouldn't give a "fucking lawyer" to a "baby killer." The military judge in the case, now NMCCA Chief Judge O'Toole, rejected the defense's version of the events and ruled that under the detectives' account, Petty Officer Delarosa's statements were admissible.
Despite Petty Officer Delarosa writing "NO" when asked if he wanted to waive his Miranda rights, both the trial judge and NMCCA ruled that this response was ambiguous in light of his previous indication that he wanted to make a statement. NMCCA continued that once the detectives determined that his willingness to make a statement was contingent upon having a command representative present, they properly stopped their interrogation. NMCCA then phrased the decisional issue in the case as "whether the police 'scrupulously honored' the appellant's right to remain silent when, approximately 35 minutes after he invoked his right to remain silent, they reinitiated contact with the appellant to ask if he was willing to take a polygraph regarding his son's death."
NMCCA then applied the Supreme Court's holding in Michigan v. Mosley, 423 U.S. 96 (1975), and held that the police had scrupulously honored Petty Officer Delarosa's invocation of his right to remain silent.
The court adopted this legal test: "We join the federal circuits in holding that the constitutionality of a subsequent police interview depends not so much on its subject matter or on the length of time between interviews, but rather on whether the police, in conducting the interview, sought to undermine the suspect's resolve to remain silent."
Applying it in this case, the court reasoned that the passage of time before the police reinitiated was not "of primary importance" in answering the decisional issue. NMCCA instead adopted what it called a "flexible approach that takes account of all relevant circumstances." Reviewing the evidence, NMCCA concluded that there was "no evidence of ongoing and repeated efforts to wear down the appellant's resistance."
Judge Couch separately concurred in the result. He observed that CMA's opinion in United States v. Watkins, 34 M.J. 344 (C.M.A. 1992), recognized that "police legitimately may inquire whether a suspect has changed his mind about speaking to them" and that nothing "in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision." Judge Couch characterized the detectives' request to polygraph Petty Officer Delarosa as such an inquiry to determine if he would reconsider his previous invocation of his right to remain silent.
The most significant factor for Judge Couch was that "it is clear from the record the appellant ultimately decided to waive his right to remain silent after he learned that his wife was at the police station to take a polygraph test of her own." Finally, he concluded that Petty Officer Delarosa's ultimate admissions "came after a significant period of time since his invocation of silence."
Regardless of the ultimate outcome, at least CAAF's grant suggests that the final decision will be the product of deliberation following oral argument at which the judges and the parties' counsel can explore the important issues that this case presents.
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18 comments:
Regarding the use of initials in court opinions--Never, I say, except in the rarest and most unique of circumstances (child victims and witnesses, perhaps, but not adults). Absolutely never in the case of officials involved in the military justice system (judges, attorneys, police, SJAs, CAs, etc.)
If you always use initials, people like TSgt Edward Schlegel, USAF, would escape scrutiny. TSgt Schlegel is mildly notorious for conducting illegal searches in two separate cases, resulting in two appellate reversals, a fact specifically noted by CAAF in US v. Conklin, 63 M.J. 333, 339 n. 38 (CAAF 2006). ("We are mindful of the fact that [TSgt Schlegel's] inspection of a personal computer on a different occasion has been the subject of appellate criticism.").
Code 46's policy is to oppose motions for oral argument at NMCCA. I supect that this is because the time spent preparing for oral argument in any given case constitutes waste in a lean six sigma environment. The individual attorneys, however, love oral argument and are excited when the opportunity arises.
Oh, great. Management buzz words are trumping the quest for justice.
CAAFlog--whatever the policy concerns of Navy's Appellate Gov't Division may be, that Division does not control the Court's docket. NMCCA decides which cases get oral argument.
Perhaps if the CCAs did not have to spend so much time on mandatory review of guilty-plea cases, they could spend more time on the important ones.
Cloudesley, you're channeling me.
We should hold an oral argument kaizen for the 46ers to see if they can get better results by only strategically opposing oral arguments vs. blanket opposition.
A few thoughts:
1) The NMMCA policy of opposing oral argument, which is also an Army GAD policy I believe, is not so much about lean six sigma as it is about keeping the gov't attorneys from peeing their dress uniforms. I've never seen a more uncomfortable (and not coincidentally), unpersuasive group than gov't counsel. Luckily, they have every advantage on appeal.
2) I wonder if there any exceptions to this policy, or if a pro forma opposition motion is filed for every defense request for oral argument. It would be silly for the gov't to oppose oral argument in an obviously important case, but then again, the gov't is very silly.
3) Lean six sigma is not a buzz word - it's a methodology used in the business world. But that matters not. The real question is whether it has any application in the military justice world. In this particular instance, i.e., requesting oral argument, it only makes sense if you buy into the position that oral argument makes no difference. Plus, I'm sure it takes the gov't a long, long time to change the names, units, etc. in their stock briefs.
4) Bob Costas is short...almost "Little People, Big World" short...
Anon 10:03
Your generalization about government counsel at oral argument is nothing but your opinion. And we know what opinions are like. I can clearly say the same thing about defense counsel.
Regarding policy, if you think there is one, just ask a government counsel. It is probably that argument, though exciting adds a layer of unknown as when a judge asks about a defense AOE that was raised in a brief but not specified, or when a judge asks about a series of cases that are not related to the issues specified or a host of other reasons.
Your drive by about the government being "silly" is about as persuasive as the rest of your argument. And the last point makes no sense when discussing argument. Why would the government oppose oral argument on a case based upon changing names and units in a brief? Nonsensical, the brief is filed so there is no changing of anything. Either you are trying to tie the writing of a brief to the argument of the case which is different or you have very little experience in the appellate system.
Finally, do you think the government has any sway with any court? First, CAAF specifies, independently all their cases that go to argument with no input on argument from either side. Secondly, CCAs may accept such input but the court makes that decision and not the government. Based upon your previous rational, there would be no cases up for argument as the government would oppose them all and the court, by default, would demur to their position. Unless and until you read every pleading by the government on their position about argument I suggest you are mistaken in your position.
There is no Army GAD policy to oppose oral argument in all cases. The problem is defense attorneys consistently submit oral argument requests in cases that are extremely straight-forward so that they can either "practice," beef up their OERs, or fleece their clients for some more money (actual justifications I've heard from defense attorneys). Opposition to motions for oral argument are based on each individual case. If a case is worth arguing, there is no opposition.
This obsession many attorneys have with oral argument is overblown. While I think it is one of the most fun aspects of appellate litigation, the whole point of oral argument is to assist the Court with resolving issues and answer questions they may have that could not be addressed through the pleadings. It is not to hear the sound of our own voices or to prove what great lawyers we are to the rest of the world. With 50+ page briefs (not including reply briefs) we should be able to resolve most issues with our writing skills. While there is value in oral argument, it should be the exception, not the rule.
ANON 10:03 is a bit touchy about the fact that some of us defense types joke about the fact that GOVT counsel often (not always, but often) look like they are gonna uninate in thier uniforms at arguement. Sorry, but that is just how it appears. As far as the breif "name changing" thing- it is a joke about the fact taht even if the Defense wirtes a massive (maybe lame, but massive) brief the GOVT can just file a "not error, but if error- harmless, if not harmless - Sales it. Now that is easy, and funny. Come on - admit it.
It was pretty funny when a defense counsel passed out at the podium during a CAAF argument two terms ago. If that is the standard I will take looking "uptight" any day.
In all of these comments I have not read ANY of them that deny that Code 46 has a policy to oppose oral argument at NMCCA. If this is indeed true, than someone should tell the JAG who would be livid to hear this. Perhaps I will tell him myself.
Funny, I never found CAAFlog to be the appropriate venue to disseminate OJAG policy. If it is, just FOIA the document or better yet tell him. If you have the ear of the JAG I encourage you, beg you to tell him whatever you want. What you will find, despite your conspiracy theories to the contrary is that the government probably believes that they have answered the court's questions.
In all of my CLE with appellate court judges in state and federal courts I routinely hear the judges say the disfavor argument. It substantially adds little to the process other than the "Oh gee, look at me" factor. If it is not addressed in the pleadings than you've done a poor job in your brief. That being said, I doubt the JAG reads this blog so I encourage you to request mast and ask him. Otherwise...
If that is (which I really doubt) Code 46's policy, to oppose argument in cases which they feel don't merit argument why would TJAG be "livid?" Why would hte Judge Advocate General of the Navy be upset at Navy GAD doing its job?
Anon Sun 5:31...where do you get this information?
To government attorneys credit, I have seen them recover expertly after they first pee themselves at the podium. After that bit of nervousness hits the floor, they generally do a great job of reading their prepared argument to the judges.
It's all fun and games until someone loses and eye..or in the appellate world, someone is accused of IAC. Then it seems the government is the best friend of defense counsel.
Look, all this petty bickering about gov't appellate v. defense appellate is pointless. Can't we just all agree that gov't counsel are generally mouth-breathers who were denied slots in defense appellate?
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