CAAF has issued their opinion in United States v. Delarosa, __ M.J. ___ (C.A.A.F. 2009).
In this case the appellant was initially prosecuted in state court. As a result of a granted suppression motion the state prosecution was dismissed. It appears the state court judge found the civilian police did not “scrupulously” follow the suspects exercise of his rights. The Navy took the case and saw things differently. The state judge’s decision is not dispositive in court-martial because it’s a different jurisdiction, different trial, and different judge – not “law of the case,” and not even worthy of deference.
Unlike the state court judge the Navy judge found that the appellant’s confession to civilian police was admissible. The NMCCA agreed the statement was admissible as has a 4-1 majority of CAAF.
Appellant sought to persuade the courts that he invoked his right to silence by refusing to talk “until a command representative” was present. Under the police rules a command representative was never going to be permitted to be present. So the appellant’s “condition” was never going to be fulfilled. The military judge and appellate courts interpreted this event as an “ambiguous” exercise of rights entitling the police to continue to harass appellant into “clarifying” his decision until of course he folded and confessed.
IMHO, Judge Erdmann the lone dissenting CAAF judge got it right. I don’t see how it can be ambiguous when a suspect says “no” I will not talk to you, but I will if there’s a command representative present. It seems to me that this is not an ambiguity but setting a condition that the police can or don’t have to fulfill. In other words that’s a no with a condition that I might change my mind if circumstances change. The ambiguity is not in the present exercise of the right but in the future potential to revisit the exercise of the right if a condition is complied with. Until circumstances change it’s a clear unambiguous no. Perhaps this is what the Virginia court judge saw.
I think it was Justice Kennedy who asked some real life based questions during oral argument in Davis v. United States, 512 U.S. 452 (1994). Justice Kennedy was concerned about how people speak in real life; that people don’t speak in stilted legalese. We can have some bright-line rules that are nice for police and lawyers to follow, but is that reality? People do not always speak in bright-line terms. Perhaps a lawyer would. I think Justice Kennedy’s concerns have played out in real life as Davis’ progeny continue to show. As Delarosa shows, allowing the police to “clarify” is just another opportunity for them to use their interrogation skills and tactics on a suspect to clarify away the desire to be silence. That may be legal, it’s not reality.