Wednesday, June 06, 2007

New CAAF opinion

United States v. Gardinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. June 6, 2007). Judge Erdmann for the majority; Chief Judge Effron concurring in part, dissenting in part.

Gardinier was suspected of inappropriately touching his five-year-old daughter. A detective from the El Paso County, Colorado sheriff's office asked Gardinier to come in for questioning, which he did. The detective also invited a CID agent to watch. The detective read Gardinier his Miranda rights at two points and questioned him while the CID agent observed from another room. At both points when he was advised of his Miranda rights, Garndinier readily waived them. The CID agent then questioned Gardinier, but without first providing Article 31 warnings. During the interview, Gardinier made a written statement. The interview was also videotaped. Four days later, the CID agent called Gardinier to the CID office and told him he would like to question him again because the first questioning might have not have been preceded by a proper rights advisement. Gardinier was not informed that his first statement to the CID agent would be inadmissible in court. But this time the agent did provide Article 31 warnings.

At trial, the defense moved to exclude both statements. The military judge admitted both. While he found that the CID agent should have given Article 31 warnings to Gardinier, the military judge concluded that the failure was "harmless error or not prejudicial to the substantial rights of the accused" because the Miranda rights provided by the detective "in substance, advised [him] of all of his rights." Gardinier, slip op. at 6. On appeal, ACCA agreed. United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006).

CAAF concluded that the military judge erred by admitting the first statement to the CID agent. Gardinier, slip op. at 9. CAAF then concluded that the results of the second, properly warned and kinda-cleansed interrogation were properly admitted. Gardinier, slip op. at 11.

CAAF also concluded that the five-year-old daughter's statements to a nurse were testimonial hearsay that were admitted in violation of Crawford v. Washington, 541 U.S. 36 (2004). The daughter was sent to a sexual assault nurse examiner after being interviewed by the sheriff's department and human services department. During the interview, the nurse completed a form that included a recitation of the daughter's account of the molestation. This form was admitted at trial. The nurse also testified at trial, over the defense's objection, about the daughter's statements. CAAF concluded that "on balance the evidence tips towards a conclusion that the [daughter's] statements were elicited in response to law enforcement inquiry with the primary purpose of producing evidence with an eye toward trial." Gardinier, slip op. at 14.

ACCA had found that a videotaped interview of the daughter was improperly admitted, but found that error was harmless. CAAF noted that the harmlessness determination may now be different in light of not only the erroneous admission of the videotape, but also the erroneous admission of evidence concerning Gardinier's first statement to the CID agent and the testimony of the sexual assault nurse examiner about the daughter's statements. CAAF therefore remanded the case to ACCA for a new factual sufficiency review and an assessment of whether all of the errors were harmless.

Chief Judge Effron dissented in part, arguing that the second statement given to the CID agent was inadmissible because of Gardinier's statements about his motives for making the statement and the absence of a cleansing warning.

I find the opinion somewhat dissatisfying in its discussion of why the two Miranda warnings and waivers were insufficient to meet Article 31's requirements. Here is ACCA's reasoning on this issue:

Initially, appellant was not specifically informed of his Article 31(b) rights. However, prior to taking the 3 January 2002 written statement, Detective Larsen informed appellant he was being questioned because his daughter had made allegations of sexual misconduct, and further notified appellant of his Miranda rights. See, Miranda, 384 U.S. at 436. The rights warnings and notice regarding the nature of the accusations Detective Larsen gave appellant satisfy the requirements of Article 31(b), UCMJ, and Miranda. See, United States v. Seay, 60 M.J. 73, 77 (C.A.A.F. 2004) (reaffirming the applicability of Miranda to military law as stated in United States v. Tempia, 16 U.S.C.M.A. 629, 640, 37 C.M.R. 249, 260 (1967)).
United States v. Gardinier, 63 M.J. 531, 534 n.3 (A. Ct. Crim. App. 2006).

CAAF's discussion of this issue includes a citation to United States v. Rogers, 47 M.J. 135, 137 (C.A.A.F. 1997), where Judge Crawford's opinion for the court sets out a chart comparing Article 31 and Miranda. Gardinier, slip op. at 7 n.2. The only relevant difference in the Gardinier context would be the requirement to advise the suspect of the nature of the offense, which ACCA says was satisfied by the information the detective provided to Gardinier.

CAAF's reversal of the military judge and ACCA on this point appears to be supported by a single sentence in its analysis: "The military judge found that the sheriff’s office was not conducting a joint investigation with the military at the time the civilian detective gave the rights advisement under Miranda." Gardinier, slip op. at 8. But it isn't apparent to me why this one fact should be case dispositive. Could someone flesh out the argument to explain why, if Garndinier was warned in a manner that would satisfy both Miranda and Article 31, he should have to be warned a second time merely because a CID agent continues the questioning that a sheriff's detective began? If CID and the sheriff's office HAD been conducting a joint investigation, then any initial warnings would have had to have satisfied Article 31 for any subsequent statement to have been admissible. See, e.g., United States v. Brisbane, 63 M.J. 106, 111 (C.A.A.F. 2006) ("We have identified . . . at least two instances when civilian investigators working in conjunction with military officials must comply with Article 31: (1) When the scope and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity, and (2) when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military." (internal quotation marks omitted)). I don't understand why the ABSENCE of a joint investigation suggests that the CID agent had to give a second set of warnings (or, in this context, a third set of warnings). The majority opinion in Gardinier seems to treat that point as if it is intuitively obvious, but I am missing it. Can anyone clarify the point?


Anonymous said...

I'm curious as to when this case was posted. Other courts--the D.C. Circuit, for one--seem to have a regular posting time (10:00 a.m.). Why not CAAF?

Sacramentum said...

I may have more comments on the substance of the opinion once I get some time to digest it. But on first reading, I was struck by some of the procedural aspects of the case.
At trial, it appears that the only objection to the nurse's report was "authentication," which was overruled. So I presume the report was admitted into evidence. A hearsay objection was raised as to the testimoy of the nurse because she was apparently trying to read the document into the record. Slip op. at 12. It is not clear what evidence was in the report the nurse was trying to read.

Later, the opinion says it was error to admit the nurse's "statements." Slip op. at 17. It's not clear whether that includes the nurse's report? I take it that it does. If it did not, and the nurse's report is admissible, I take it the nurse's reading of the statement may have been harmless. If the term "statements" does include the nurse's report, I don't understand how the issue was preserved for appeal. Is an authentication objection sufficient to put the judge on notice that the real objection is Confrontation?

Bottom line: The judge erred because he couldn't guess what was in the defense counsel's mind.

Anonymous said...

At the risk co-contributor alienation I add a No Man comment to this discussion The whole hierarchy of Art. 31 and Miranda has become a bit like contract law. I realize that 31b is statutory and, therefore, must be enforced consistent with the statute. But I don't think that means parsing out the warnings that are given by a civilian and a CID agent like they are setting up an irrevocable trust. If the CID agent told the suspect that the first statement may not have been proceeded by a proper warning, why is a cleansing warning still necessary? Why should the CID agent be the suspect's lawyer and tell him not only the reason for the new warning but speculate on its legal effect? The warning says if you don't get this talk to a lawyer. If the suspect wants to know the effect of the prior failure to advise, get off his ass and talk to a lawyer. Maybe that is expecting too much, but is Art 31 really that technical?

Guert Gansevoort said...
This comment has been removed by the author.
Guert Gansevoort said...

I find it fascinating that, as Miranda recedes into legal oblivion, the C.A.A.F. has not retreated from Article 31(b), even when it could do so.

To me, the major distinction between the civilian rights advisement and that required by Article 31(b) and Tempia, involves the right to counsel. Unlike Miranda, Tempia, which has been codified in M.R.E. 305(d)(1), requires a suspect to be informed that an attorney will be provided to him at his request, regardless of whether or not he is indigent. I think that distinction may explain why the first confession taken by CID and local law enforcement was inadmissible in this case. The standard CID rights advisement contains the Tempia/31(b) counsel advisement. Accordingly, his second confession should be admissible with the presence of a cleansing warning and other circumstances, the totality of which point to voluntariness.

Dwight Sullivan said...


You are certainly right that a military accused has a superior right to counsel compared to a non-indigent civilian, since the former can obtain free counsel while the latter has to pay. But I don't think that could have been the basis for CAAF's opinion. Remember that Gardinier cited United States v. Rogers, 47 M.J. 135 (C.A.A.F. 1997), concerning the differences between Article 31 and Miranda. Rogers, quite properly, puts "Right to Counsel" on the Miranda side of its chart, not the Article 31 side. So if that is what CAAF had in mind, it certainly wouldn't have cited Rogers. Also, the right to counsel is nowhere in Article 31 -- as you point out, Military Rule of Evidence 305(d)(1)'s codification of United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (C.M.A. 1967), provides for such a warning. Surely CAAF would never be so careless as to write "Article 31" when it meant "Mil. R. Evid. 305(d)(1)." So CAAF must have had something else in mind.

Anonymous said...

The legislative history and the last three words of Art 31, "at a court-martial," provide for rights warnings designed to specifically address the potential coercive nature of military questioning. While some may argue this is merely semantics, I would argue that the form of the Art 31 warning is just as significant as the substance.

As for the waiver issue for the hearsay statements, this case is retroactive application of Crawford on direct review. While CAAF has not come out and explicitly stated so, the standard for review must be akin to de novo. In fact, many federal and state jurisdictions have adopted such a view.