Friday, February 01, 2008

CAAF okays lies as an interrogation technique

In United States v. Freeman, __ M.J. ___, No. 06-0833/AF (C.A.A.F. Feb. 1, 2008), CAAF affirms the Air Force Court's opinion rejecting a challenge to the admissibility of a confession, the military judge's denial of a defense expert assistance request for an interrogation consultant to help the defense mount a false confession argument, and finding the admission of certain uncharged misconduct harmless. Judge Stucky wrote for a unanimous court. Here's a link to the opinion.

The expert assistance issue was probably the most important of the three. The court sets out a two-part test (one part of which has three sub-parts) that the defense must satisfy to receive expert assistance. "[T]he accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense and (2) that denial of expert assistance would result in a fundamentally unfair trial." Freeman, slip op. at 19. "To establish the first prong, the accused 'must show (1) why the expert assistance is needed; (2) what the expert would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop.'" Id. (quoting United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)). CAAF held that the defense failed to establish that the defense counsel themselves couldn't gather and present the false confession evidence without an expert's assistance. The court reasoned, "[W]hat defense counsel really wanted was knowledge of interrogations that they could have obtained themselves. They failed to establish why they were unable to gather the relevant information and cross-examine the investigators on their interrogation techniques and their use of those techniques in eliciting a confession." Id., slip op. at 22.

CAAF doesn't seem to be saying that the defense can never obtain expert assistance in a false confession case. Rather, the court seems to say that under these particular facts, the military judge didn't abuse his discretion by finding that the defense counsel could have done it themselves. This provides an important litigation tip to defense counsel: in moving for expert assistance, emphasize specialized training and knowledge beyond what the defense counsel could reasonably be expected to develop himself or herself. Obviously this will be harder when dealing with a subject like interrogations, with which criminal litigators would have substantial experience. Perhaps having the expert emphasize some subtle points of potential psychological coercion would work.

Has anyone successfully obtained an interrogation consultant? If so, what arguments did you advance?

The second issue in the case is certainly the least important. Under the facts of this case, CAAF agreed with the Air Force Court that the admission of uncharged misconduct was harmless.

The remaining issue isn't the most important, but it's probably the most interesting. During their interrogation of Senior Airman Freeman, the OSI "agents lied to Appellant: They [falsely] claimed to have witnesses who saw him out that night and that his fingerprints had been found at the crime scene. They advised him they would tell his commander whether he had cooperated and threatened to turn the case over to civilian authorities, where he would face stiffer punishment." Freeman, slip op. at 15. The OSI agents' precise threat regarding civilian law enforcement authorities was, "[I]f you don't tell the truth, the case will go downtown and with a civilian victim you could get five years in jail." Id., slip op. at 11. Coincidentally, SrA Freeman's adjudged and approved court-martial sentence included confinement for five years.

And here's an irony: SrA Freeman was convicted of not only aggravated assault, but also making a false official statement. Presumably the evidence that supported that finding was obtained via the lies that the OSI agents told him.

Regardless of the irony or morality of what occurred, there is little doubt about its constitutionality (or, as ACCA would say, Constitutionality; does ACCA also write unConstitutional?). CAAF concludes that "[u]nder the totality of the circumstances, Appellant's confession was voluntary." Id., slip op. at 15.

Reading about SrA Freeman's interrogation reminded me of a passage in David Simon's Homicide that provides the best explanation I've ever seen of why guilty people waive their right to remain silent, turn down a free lawyer, and confess to crimes -- a distinct question from this case's rejected expert's assignment of explaining why an innocent person would confess. David Simon and I were on our college newspaper's staff together, and it was already apparent then what fans of Homicide, The Corner, and The Wire know -- he is a phenomenal writer. He is also a veteran Baltimore Sun police reporter and a keen observer. If you haven't read Homicide yet, buy it RIGHT NOW. Here's a link. [I still don't understand the book market -- on Amazon, it's half the price of I'm also standing by for the No Man to offer up that Charm City idiosyncrasy of referring to the Baltimore Sun as the Sunpapers.]

Okay, now that you've got the book, turn to page 193 (assuming the pagination is the same as in the hardback edition) and read through to page 207. Brilliant. Absolutely brilliant.

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