Thursday, February 07, 2008

CGCCA holds two CGIS agents' five-minute conversation in front of a suspect for the admitted purpose of getting him to reinitiate isn't interrogation

A CAAF grant in United States v. Bonilla, __ M.J. ___, No. 1259 (C.G. Ct. Crim. App. Feb. 7, 2008), is almost as certain as a Patriots victory in Super Bowl XLII. Wait a second . . . .

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.


Anonymous said...

I don't see a problem with this opinion. A clearly guilty perp duped by two earnest cops trying to keep us safe. No problem with that.

Dwight Sullivan said...

That seems to be saying that this is not an "unjust" result. And as I tried to convey in my post, I think that's a perfectly defensible position. But even if it is a just result, it does not comply with a legal rule that says that a suspect who invokes his right to counsel cannot be questioned further unless the suspect "initiates further communication, exchanges, or conversations with the police," Edwards, 451 U.S. at 485. Remember that the Supreme Court has held that interrogation includes not only questioning, but also statements likely to elicit an incriminating response. Two law enforcement officers sitting in front of an accused who has been held for hours and hours in a tiny interrogation room who hold a five-minute conversation in front of the suspect is reasonably likely to elicit an incriminating response.

PLUS, as Chief Judge McClelland observes, the officer who delivered the initial Article 31 warnings certainly violated Article 31 by failing to advise the suspect of the offense of which he was suspected.

So perhaps the rules should be changed to allow what the Coast Guard law enforcement personnel did in this case. But as long as we are operating under the current rules, this was impermissible.

Anonymous said...

The formal record of this case indicates that the CGIS Agents acted totally within the law (as indicated by the CG Court of Criminal Appeals RIGHTFULLY upholding the finding of Guilty for Bonilla), and more likely than not the CGIS Agents prevented an incredible tragedy from occuring!!! In this day and age it's prudent that when someone makes a claim that they're going to kill someone that law enforcement TAKE THE THREAT SERIOUSLY. Thank God the CGIS Agents did!! Furthermore, Bonilla was advised of his 31(b) Miranda rights by the CGIS Agents BEFORE the CGIS Agents questioned him. During which Bonilla was informed about the charges against him. Bonilla elected to talk to the CGIS Agents. Bonilla was also advised by the CGIS Agents that he could terminate the interview at any time and he signed the Rights form acknowledging that he was aware of this right. Bonilla didn't terminate the interview and he never asked for a lawyer. No Oscar needed here but maybe a little consideration is due to the two CGIS Agents who responded to the call to protect the constitutional rights and possibly the life of the true victim of this incident-that being the CG Senior Chief.

Dwight Sullivan said...

Your argument would suggest that we should do away with Miranda entirely, since "[i]n this day and age," it might interfere with law enforcement agents obtaining a confession to many offenses more heinous than communicating a threat. Maybe we should, maybe we shouldn't. But only the Supreme Court can. Unless and until the Supremes do so, lower courts must obey Miranda and its progeny. That progeny includes Supreme Court precedent holding that law enforcement officers may not reinitiate an interrogation once a suspect has invoked his or her right to counsel. Supreme Court precedent holds that this right must be respected even more scrupulously than an invocation of the right to silence. Say an accused invokes the right to counsel. If the police then reinitiate, it doesn't save any subsequent confession if the suspect is Mirandized and waives after that reinitiation occurs. In this case, the CGIS agents reinitiated. Perhaps, as you argue, it served a greater good that they did so. Decisions like that are way above my pay grade. My point is that, given the descriptions of events in the Coast Guard Court's opinion, the CGIS agents' actions appear to have clearly violated the rules for obtaining an admissible confession.

But why do you seem to assume that a lack of a confession would equal an acquittal? Wasn't the threat communicated to another person? Of course -- and Coast Guard law enforcment agents were told of the threat, which is why they apprehended Seaman Bonilla. So even without Seaman Bonilla's confession, the government may have been perfectly able to try and convict him.