Wednesday, May 06, 2009

CAAF releases its opinion in Delarosa

Here's a link to CAAF's opinion in United States v. Delarosa, __ M.J. __, No. 08-0390/NA (C.A.A.F. May 6, 2009). Chief Judge Effron wrote for the majority affirming the Navy-Marine Corps Court. Judge Erdmann dissented. The majority held that Petty Officer Delarosa's confession to civilian law enforcement authorities was properly admitted.

Petty Officer Delarosa was suspected of killing his infant son. Interestingly, he was initially tried in a Virginia court where the judge suppressed his confession. See id., slip op. at 7. He was later tried by the military, where the military judge, the Navy-Marine Corps Court, and now CAAF all ruled that his confession was admissible.

The day after Delarosa's son died, he went to a Norfolk police station, where he was questioned by detectives. He indicated that he wanted to speak with the detectives. The detectives told him he must first identify his son's body and be advised of his rights. During the rights advice process, Delarosa repeatedly interrupted to say he wanted to talk to the detectives. But after indicating on the rights advisement form that he understood his rights, Delarosa wrote "NO" next to this block: "I further state that I waive these rights and desire to make a statement." He then wrote "N/A" next to this block: "This statement is completely free and voluntary on my part without any threat or promise from anyone." When the detectives expressed their confusion as to why Delarosa had written "NO" on the waiver block when he had expressed a desire to speak about his son's death, Delarosa indicated that he wanted to talk to the detectives but wanted a command representative present. A detective told him that a command representative wouldn't be allowed to be present, but reiterated that Delarosa had a right to counsel. Delarosa didn't request a lawyer, but reiterated his request for a command representative. The detectives then left the room and told Delarosa to review the rights advisement form and knock on the door when he had made a decision.

About 35 minutes later, one of the detectives returned to the interrogation room to ask Delarosa if he would take a polygraph. About two hours later, when one of the detectives was accompanying Delarosa on a head call, Delarosa learned that his wife was at the station and about to be polygraphed. Delarosa then said he wanted to talk to the detectives about his son's death. The detective said they couldn't speak with him because of his "No" answer on the rights advisement form. Delarosa responded that he had been confused and he now wanted to waive his rights and take a polygraph. The detectives later readvised Delarosa of his rights. This time, he answered that he wanted to waive his rights. During a post-polygraph interrogation, he made self-incriminating statements that were then used against him at his court-martial, over his objection.

The issue central to CAAF's decision was whether Delarosa had ever unequivocally invoked his Miranda rights. CAAF concluded that he had not. CAAF reasoned, "In light of Appellant's repeated statements reflecting an intent to cooperate, Appellant's 'NO' response on the rights advisement form was ambiguous." Id., slip op. at 19. Because Delarosa didn't unequivocally invoke his Miranda rights, there was no constitutional requirement for the detectives to stop questioning him. Id., slip op. at 20. CAAF also held that Delarosa's decision to make incriminatory admissions was voluntary, knowing, and intelligent. Id., slip op. at 21.

Judge Erdmann concluded that Delarosa unambiguously invoked his right to remain silent: "Upon determining that Delarosa would not waive his right to remain silent unless a command representative was present, and since police policy would not allow that presence, the detectives had the necessary clarification and Delarosa's invocation was unambiguous." Following that unambiguous invocation, Judge Erdmann concluded, the detectives failed to scrupulously honor it.


Anonymous said...

At some point in the process, these appeals judges must stop and think 'Wow, I wonder if this will be the straw that breaks the camel's back and gets the Supremes up in our business'.

Is there a better fact pattern ever than this case to get cert?

And it is not like these guys work hard. They could have a full business on the side landscaping or painting and keep up with their docket. Lots of time to talk and think their spew through.

Dwight Sullivan said...

0830 Anon, if the Supremes were to take the case, I think it would be for the purpose of scaling back its case law dealing with custodial interrogation rather than to reinforcing it.

On 27 March, the Supremes directed counsel in Montejo v. Louisiana (07-1529) to file additional briefs addressing whether the Court should overrule Michigan v. Jackson. The SG took the position that the Court should.

Anonymous said...

The facts as described by the court and as set forth in the written documents are:

Suspect was slowly led into being in custody, with side trip to view the body.

Suspect wanted to make a statement until faced with item six in the advice of rights form. Suspect also stated in writing the statement was not given freely.

The police tried to pull the "'No' (lawyer), what does 'no'(lawyer) mean?" game.

The suspect, under the additional questions after stating no and saying in writing on the government form he was not giving a free statement, and after being left alone in the interview room, gave it up.

The state court tossed the statement, the military courts thought it was just dandy and used it.

This is black letter law. He wrote no on the form, and the cops kept going.

Anonymous said...

Anon 1229: Counting CCA, 7 of 8 appellate judges think otherwise. Oh yeah, and one state level trial judge is with you.

Anonymous said...

1229: It's also worth noting that CAAFlog isn't discussing what arguments were made at the state court and what (if any) reasoning was offered to suppress the statement.

I don't know whether you are operating under the assumption that identical or better arguments were made...but I wouldn't be so sure.

The fact is, Delarosa wasn't forced to say anything. When he found out his wife was getting a poly, he volunteered to speak. It's also worth noting that this decision was made while walking back from a head call, not during some kind of pressure-packed interrogation room discussion.

Anonymous said...

The VA district court judge suppressed the statement after the commonwealth attorney failed to provide any evidence or coherent argument as to the admissibility of the statement the state intended to offer. In fact, it was the abysmal record at the courthouse in Norfolk, coupled with the fact that we had a dead infant with a unanimous conclusion by medical experts that the cause of death was a homicide, that led us (I say "us" b/c I was the prosecutor that took this issue into court on behalf of the United States) to re-charge this case.

Also worth noting is that the Navy's Manual of the Judge Advocate General (JAGMAN) section 0124 requires the permission from the JAG to even refer charges against an accused in "[c]ases in which civilian proceedings concluded without conviction for any reason other than acquittal
after trial on the merits." Thus, we had to make our case before the JAG long before this suppression hearing was held before Judge O'Toole.

Finally, one additional comment regarding the CAAF's brief analysis as to the voluntariness of the statements. As a recent graduate of SERE school, AO3 Delarosa was a person who was specifically trained to resist an atmosphere of coercion and intimidation (though that was not what happened in the interrogation room in Va Beach). This was a point stressed during the argument that was not included in the opinion.

The CAAF got this one right.

Anonymous said...

So how in the world did this guy end up acquitted on all charges except for one aggravated assault spec for which he recieved a measly 3 months? Sounds to me like while the suppression motion failed, the circumstances were still useful to the defense for findings strategy and the statements weren't all that great to begin with.