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Here is a link to CAAF’s new decision in United States v. Chatfield.  The opinion is valuable for three issues:  what is custody, what is coercion, and a reminder to consider jointness of military and civilian investigations. 

When does a superiors words of actions create a custodial interrogation situation or make a person’s waiver of rights coercive?

[T]he Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  To answer the question whether an accused is in custody for purposes of Miranda, we consider “all of the circumstances surrounding the interrogation” to determine “how a reasonable person in the position of the [accused] would gauge the breadth of his or her freedom of action.” Stansbury v. California, 511 U.S. 318, 322, 325 (1994) (quotation marks omitted).

Here’s Stan Walters on the issue:

We need to start recording ALL interrogations, stop the abuse of the criminal justice system, and ALWAYS blame the cop first if the bad guy confesses, gets convicted or if Grandma gets tazed because she failed to follow a lawful order and resisted arrest.  Juries and ESPECIALLY the public needs to see what really goes on during an interrogation.

Alcohol Abuse on Rise Among Soldiers

June 20, 2009 Agence France-Presse

Nearly twice as many US Army Soldiers today compared to six years ago are either alcoholic or engage in damaging behavior such as binge drinking, according to army statistics. Data shows more than 11 Soldiers per 1,000 were diagnosed as suffering from alcoholism or alcohol abuse problems in the first six months of this year, a jump from 6.1 per 1,000 in 2003.

If you’re a lawyer looking for first-rate appellate CLE, then please consider registering for the DRI Appellate Advocacy Seminar, to be held November 5–6, 2009 in La Jolla, California (near San Diego), at the Hilton La Jolla Torrey Pines.

the (new) legal writer.

A reporter for The San Diego Union-Tribune will have to testify as a defense witness in a court-martial, a military judge ruled Monday.

In his 12-page ruling military judge Cmdr. Kevin O’Neill rejected Rogers’s attempts to assert a First Amendment-based reporter’s privilege and protection under the California shield law. O’Neill said he did not need to answer the question of whether a First Amendment-based privilege exists in military court or whether California’s shield law applies because the privilege would be overcome anyway in this case.

Reporter ordered to testify at court-martial.

While we are all waiting with bated breath – now Denedo is out – for Melendez-Diaz, Professor Freidman has posted on an interesting Supreme Court of Michigan case interpreting Crawford/Davis.   People v. Michigan, (Mich. 10 June 2009).  Interestingly, the prosecution in the case asserted the statements of the victim were admissible as excited utterances, and affirmatively waived any proffer as a dying declaration.  Here is the nub of Professor Freidman’s comment agreeing with the court’s decision to suppress the statements.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

This is another of those competing consent/no consent cases.

As is typical, the accused is held at NCIS and denies a consent to search his home.  The enterprising agents rush of to the next room and get wifey to consent.  As usual they don’t tell wifey that the accused has not consented to a search, they’ve kept him incommunicado from wifey, and taken his cell phone away as he was trying to call a lawyer.  This same lawyer later talked to wifey who – too late – withdrew her consent.  CAAFLog has this comment on the potential next step in the case.

In another of a series of cases the Air Force Court of Criminal Appeals has decided a personal jurisdiction issue adverse to the accused.

United States v. Blanton, ACM S31536 (A.F. Ct. Crim. App. 9 June 2009).

Basically the issue relates to the “accounting of pay” part of whether an accused is properly discharged.  The accused was under investigation but no preferred charges existed.  The accused receives his DD214, but no final accounting of pay.  An additional aspect was a finding that the accused had been placed on legal hold pending an investigation.

Professor Tillers has this interesting post on his blog.

In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:

     A prosecutor’s failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988).

Joe Ryan, A swaggering defense attorney who authorities say turned his back on the law, The Star-Ledger (NJ.com), 31 May 2009.

Last August, authorities say, Paul Bergrin traveled from Newark to Chicago hoping to meet a hit man.

Bergrin, who investigators describe as a go-to lawyer for Newark street gangs, was working on the case of an alleged Monmouth County cocaine kingpin. Authorities say the attorney wanted someone in Chicago to silence a potential witness.  That would-be triggerman, however, wound up working on a different case. He was an informant for the federal Drug Enforcement Administration. And his case was against Bergrin.