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Roguish Lawyer
05-24-2004, 18:51
http://www.cnn.com/2004/LAW/05/24/prisoner.abuse.england.ap/index.html

Lawyers for accused soldier want confession tossed
Military's questioning in abuse probe violated rights, attorney claims
Monday, May 24, 2004 Posted: 2:37 PM EDT (1837 GMT)

WASHINGTON (AP) -- Lawyers for one of the soldiers accused of abusing prisoners in Iraq said Monday they will ask a military judge to throw out her confession, because they contend military investigators pressed her to talk after she had asked for an attorney.

Pfc. Lynndie England is one of seven soldiers facing military charges in connection with the abuse at the Abu Ghraib prison. She appears in several of the most well-known photographs from the prison, including one where she is holding a leash attached to a collar around the neck of a naked prisoner.

One of England's civilian lawyers, Rose Mary Zapor, said Army agents had violated England's rights by questioning her after she had asked for an attorney. Zapor said England's legal team would seek to have the confessions thrown out.

"She had invoked her right to counsel, and those statements are illegal. In a civilian court, those would be immediately suppressed," Zapor told The Associated Press in a telephone interview Monday. Defendants in military courts have the same rights to lawyers that criminal defendants have in civilian courts.

Zapor declined to discuss what England said. News reports have said England acknowledged participating in the abuse of prisoners and insisted the mistreatment was approved by military intelligence operatives.

England, 21, is charged with assaulting Iraqi detainees, conspiring with Spec. Charles Graner Jr. to mistreat the prisoners and committing an indecent act by forcing prisoners to masturbate.

Zapor and another lawyer for England, Roy Hardy, said Monday they also will try to determine if the commanding general in Iraq knew about the abuses. The Washington Post reported Saturday that a military lawyer quoted a witness as saying the commander, Lt. Gen. Ricardo Sanchez, was at Abu Ghraib during some of the abuses.

In a statement, the military said that allegation was false.

Zapor said Sanchez had visited Abu Ghraib during the time period that the abuses happened, but she said she did not know how many times he was there. Showing that Sanchez knew about the mistreatment would support England's claims that the abuse was tolerated or endorsed by superior officers, Hardy said.

"That would show that the chain of command was aware of what was going on there," Hardy said.

Army officials have not scheduled England's Article 32 hearing -- the proceeding where military prosecutors present evidence and a judge decides whether or not to go forward with a court-martial.

That hearing likely will be at Fort Bragg, North Carolina, where England has been assigned because she is pregnant. Graner is charged with adultery for having sex with England last October.

The Reaper
05-24-2004, 19:01
I have seen this claim before.

Continuing to talk AFTER you have been told that you are free to stop or to have an attorney is not a defense, and non-custodial questioning does not require Article 31 Rights to be read either.

TR

CSB
05-24-2004, 20:50
Defendants in military courts have the same rights to lawyers that criminal defendants have in civilian courts.

NO, they have MORE rights than a civilian.

1 - Military: "No person subject to the Code (UCMJ) shall question any other person subject to the Code... (without a rights advisement).

Civilian: Custodial interrogation by law enforcement only.

2 - Military: Military attorney at no expense to the soldier, civilian attorney at no expense to the government, or both.

Civilian: Public Defender, or hired attorney, not both.

and so on ...

Airbornelawyer
05-25-2004, 15:28
Originally posted by The Reaper
I have seen this claim before.

Continuing to talk AFTER you have been told that you are free to stop or to have an attorney is not a defense, and non-custodial questioning does not require Article 31 Rights to be read either.

TR That is not entirely accurate.

Regarding waiver of right of counsel:

A suspect may continue to talk after being advised of his or her Miranda rights, but the waiver must be knowing, voluntary and intelligent. Continuing to talk may be such a waiver, but that depends on the totality of the circumstances.

Invocation of the right of counsel, however, is alleged here. If the suspect invokes the right to counsel at any time, questioning must immediately cease until an attorney is present. (Edwards v. Arizona, 451 U.S. 477 (1981), Military Rule of Evidence 305(f)(2)).

The suspect may initiate a resumption of questioning, waiving the previously invoked right to counsel, but this waiver must also be knowing, voluntary and intelligent. According to the Military Rules of Evidence, "the accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement." (Mil. R. Evid. 305(g)(1)).

The burden is on the prosecution to prove that a waiver was valid. The Military Rules of Evidence provide that "any subsequent waiver of the right to counsel obtained during a custodial interrogation concerning the same or different offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that (i) the accused or suspect initiated the communication leading to the waiver; or (ii) the accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver." (Mil. R. Evid. 305(g)(2)(B)).

Regarding custodial interrogation:

As CSB notes, while Miranda does not apply until there is a custodial interrogation, Article 31 rights attach earlier. "When an individual is suspected of an offense, the warning must be given prior to questioning, even if the suspect is not in custody." U.S. v. Mapes, 59 M.J. 60 (Court of Appeals of the Armed Forces 2003) (quoting Francis A. Gilligan, The Bill of Rights and Servicemembers, 1987 Army Law. 3, 4 (Dec. 1987)). The rule is broader by design because military service is almost custodial by nature - soldiers are required to obey their NCOs and officers, and to answer to them. So when they are questioned as suspects, they have to be informed of their rights even if not technically in custody.

But Article 31(b) applies to suspects - the rights don't attach every time an NCO or officer asks a soldier a question. So there is a distinction between questioning focused on the accomplishment of a military mission and questioning to elicit information for use in disciplinary proceedings. However, "questioning by a military superior in the immediate chain of command will normally be presumed to be for disciplinary purposes." U.S. v. Swift, Crim. App. No. 32447 (Ct. App. Armed Forces 2000). So sometimes the issue of whether Article 31(b) warnings are required is simply an issue of who is asking as well as why he or she is asking.

Article 31(b) versus Miranda:

The right to remain silent is an Article 31(b) and a Fifth Amendment right. However, the right to an attorney is not in Article 31(b). Unlike the Article 31(b) rights, the Fifth Amendment right to counsel only attaches when there is custodial interrogation (there is also a Sixth Amendment right to counsel, but that only applies once charges are filed).

One big question would be if PFC England was or was not a suspect when she was questioned. If PFC England was initially questioned in a fact-finding inquiry rather than as a suspect, then, depending on the circumstances, she had no right to receive Article 31(b) warnings. And while as a matter of practice, when Article 31(b) warnings are given, the Miranda warning governing the right to counsel is also given, it is not legally required unless there is also custodial interrogation.

So you have three potential scenarios:

1. She was questioned as part of an administrative investigation, but not as a suspect. No Article 31(b) rights. No right to counsel. No issue of waiver.

2. She was questioned as a suspect, but there was no custodial interrogation. Article 31(b) rights, but no right to counsel. Waiver of Article 31(b) rights must be knowing, voluntary and intelligent.

3. She was questioned as a suspect and there was custodial interrogation. Article 31(b) rights and right to counsel. Waiver of both Article 31(b) and Miranda rights must be knowing, voluntary and intelligent.

Based on the article, we simply do not know enough facts to know which scenario played out here.

The Reaper
05-25-2004, 15:53
AL:

There is a fair mix of military and civil law in what you have there. Appreciate the education.

England was subject to Article 31 in regards to this case, not Miranda.

If the initial AR 15-6 questioned her as to facts of the matter, as well as the other personnel from the prison, I do not believe there was a requirement for her to receive a rights warning.

From my understanding of military law, it is entirely legal for MG Taguba or his AR 15-6 team to interview hundreds of personnel who possibly posessed knowledge of the matter, without reading them their Article 31 rights, and for the chain of command to determine subsequently that there were personnel that they wanted to consider for criminal charges. The AR 15-6 statements should be fully admissable, as should any statement by her prior to becoming a subject, after she waived, or after she was afforded representation, IIRC.

That is the scenario that I understand took place. In that case, if she was properly read her Art. 31 rights, and she properly waived, or questioning stopped till she was afforded counsel, the statement should stand.

Realistically, do you think there is a sizeable portion of the population in this country who could not recite Miranda verbatim?

I think everyone knows their rights, though many do not appear to exercise them to their benefit, and it sure makes for a lot of jousting and challenges at almost every criminal trial I have followed. Miranda, probable cause, and Right to search seem to be a booming commodity for the legal profession.

I see that earlier, the Supreme Court determined that vehicles proximate to suspects may be legally searched, even when the suspects are not in them. That should make things more interesting.:D

Just the .02 of a barracks lawyer here.

TR

Airbornelawyer
05-25-2004, 18:41
One clarification: what I wrote was not a "mix of military and civil law". Some of it is from the UCMJ and some of it is case law, but everything there is military law.

Regarding PFC England, CID had opened a criminal investigation of members of the 372nd MP Company prior to MG Taguba's AR 15-6 investigation, and his report identifies her as a suspect. So she would have to have been read her rights. AR 15-6 section 3-6(5)states that:(a)No military witnesses or military respondents will be compelled to incriminate themselves, to answer any question the answer to which could incriminate them, or to make a statement or produce evidence that is not material to the issue and that might tend to degrade them.
***
(d) Whenever it appears appropriate and advisable, an investigating officer or board should explain their rights to witnesses or respondents....
The Army's "Investigation Guide for Informal Investigations" under AR 15-6 elaborates:All soldiers suspected of criminal misconduct must first be advised of their rights.

DA Form 3881 should be used to record that the witness understands his or her rights and elects to waive those rights and make a statement. It may be necessary to provide the rights warning at the outset of the interview. In some cases, however, an investigating officer will become aware of the witness's involvement in criminal activity only after the interview has started and incriminating evidence is uncovered. In such case, rights warnings must be provided as soon as the investigating officer suspects that a witness may have been involved in criminal activity. If a witness elects to assert his or her rights and requests an attorney, all questioning must cease immediately. Questioning may only resume in the presence of the witness's attorney, if the witness consents to being interviewed.
That would seem to put England in my scenario #2 at least. Note that while Army practice, including the guidelines above, includes the right of counsel, this may not be a constitutional requirement if the questioning was not custodial. So it is possible that even if she asked for a lawyer, subsequent statements could be admissible (unless they otherwise violated Article 31), since technically she would not have had a right to counsel.

The whole thing can turn you on your head though. If she was not in custody, she had no right to counsel. But if, following Army procedure, investigators told her she had a right of counsel, and she invoked it, she might have thought she was in custody. Whether an interrogation is "custodial" is an objective test, based on whether a reasonable man in the suspect's shoes would consider himself in custody. The Military Rules of Evidence gives the right to counsel to a suspect who is being questioned by someone subject to the UCMJ and who is "is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way." If England thought she was in custody, and it was "reasonable" for her to think that, then in the light of the circumstances she was in custody.

_______________________________

The Swift case I noted earlier sets forth the basics of the Article 31 rights, and why they differ from Miranda. Sorry to bog you all down in quotes, but this is a good general background(internal citations omitted):Article 31(a) of the Uniform Code of Military Justice provides that a person subject to the Code may not "compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him." Article 31(b) implements the privilege against self-incrimination through a rights' warning requirement, providing that no person subject to the Code may

"interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial."

Congress established this statutory warning requirement in the aftermath of World War II, long before the Supreme Court's decision in Miranda v. Arizona mandated rights’ warnings in civilian society. Miranda specifically cited Article 31 as a precedent for requiring warning persons of the privilege against self-incrimination.

The rights’ warning requirements under Miranda represent judicially created, constitutionally based guidelines designed to protect the privilege against self-incrimination. As the product of constitutional adjudication, these guidelines are not "immutable," but are subject to such modifications and exceptions as the judiciary may deem necessary or appropriate in the course of litigation.

The primary source of the rights’ warning requirements in military law is a statutory enactment, not constitutional adjudication. Congress has provided members of the armed forces with a rights’ warning requirement that is broader than the warnings required in a civilian setting as a matter of constitutional law under Miranda. Article 31(b) mandates rights’ warnings for anyone "suspected of an offense," whereas Miranda warnings are required only in circumstances amounting to "custodial interrogation." In addition, Congress has expressly provided in Article 31(d) that "[n]o statement obtained from any person in violation of this article . . . may be received in evidence against him in a trial by court-martial." The broad application of the warning requirement under Article 31 to all suspects, not just those who are in custody, and the statutory restriction on admissibility of unwarned statements reflect a decision by the post-World War II Congress -- which included many veterans familiar with the military justice system and its relationship to military missions and operational requirements -- that the unique circumstances of military service required specific statutory protections for members of the armed forces.

In the armed forces, a person learns from the outset of recruit training to respond promptly to the direct orders and the indirect expectations of superiors and others, such as military police, who are authorized to obtain official information. Failure to respond to direct orders can result in criminal offenses unknown in civilian life. Failure to respond to the expectations of military life can lead to charges of dereliction of duty, as well as serious administrative consequences.

In such an environment, a question from a superior or an investigator is likely to trigger a direct response without any consideration of the privilege against self-incrimination. The Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior's inquiry does not apply in a situation when the privilege against self-incrimination may be invoked.

Another special feature of military life is the blending of both administrative and law enforcement roles in the performance of official duties. Officers, and non-commissioned officers (NCOs) in particular, have broad responsibility not only for the accomplishment of specific missions, but also for the health, welfare, morale, good order, and discipline of their subordinates. As a result, a servicemember may perceive that a question from an officer or NCO is being asked for administrative purposes, although the purpose actually may be to acquire information for use in disciplinary proceedings. As one commentator has noted:

"[M]ilitary suspects may know in a general sense that they have a right to remain silent, and they may know the consequences of waiving that right, but they may not be aware that they face adversarial situations where they may want to exercise that right. For example, a suspect may believe that a platoon sergeant is inquiring about personal finances to help the suspect balance a bank account. The suspect does not realize that the sergeant is asking the questions in a law enforcement capacity, to get evidence against the soldier for later use at a court-martial."

Our case law has interpreted Article 31 in a manner that recognizes the difference between questioning focused on the accomplishment of a military mission, including an administrative function, and questioning to elicit information for use in disciplinary proceedings. In some circumstances, there is likely to be a mixed purpose, and the matter must be resolved on a case-by-case basis.

In general, we have held that Article 31(b) requires rights’ warnings if: (1) the person being interrogated is a suspect at the time of the questioning, and (2) the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry. Whether a person is a suspect is an objective question that "is answered by considering all the facts and circumstances at the time of the interview to determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense." Whether the questioning was part of a law enforcement or disciplinary investigation "is determined by assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity." Questioning by a military superior in the immediate chain of command "will normally be presumed to be for disciplinary purposes." The presumption is not conclusive.

The Reaper
05-25-2004, 19:05
Good info.

My reference to the mix was Miranda and Article 31 rights. My understanding was that Miranda was civil law and Article 31 was military law.

You should see how much fun you can have when you get a criminal case against a soldier being investigated by Federal authorities dropped in Federal court, and reacquired for prosecution by the military in a military court, along with additional UCMJ charges.

Yee-hah!!

The point about the dual nature of the responsibilities of the CoC is well taken. Even the Company Commander is the soldier's boss, his admin officer, potentially his investigator, his prosecutor, and his judge.

I was present at a Division Officer's call when the CG announced that they had just caught the soldiers who had killed the dependent son of one of the officers, and he was going to make sure that they never did it again. He just prejudiced almost his entire Court Martial population, and himself as an impartial reviewer.

The Congressmen and media demanding apologies and action from the CoC about the prison abuse scandal fail to realize the role of the CoC in military law and the responsibility that the CoC bears to remain impartial.

Thanks for clearing that up AL.

TR

Airbornelawyer
05-25-2004, 20:59
Originally posted by The Reaper
My reference to the mix was Miranda and Article 31 rights. My understanding was that Miranda was civil law and Article 31 was military law. Miranda is constitutional law. There is no federal civil law (and no state civil law outside of Louisiana).

The hierarchy of Federal law, both civilian and military, is (i) U.S. Constitution, (ii) statutes and treaties, and (iii) rules and regulations. The UCMJ is a statute - Chapter 47 of Title 10 of the U.S. Code - and like all Federal laws is subject to the Constitution. So Article 31(b), for example, may be broader than what the Constitution allows, but it cannot be narrower. If there were a conflict between Miranda and Article 31, Miranda would win. And if Congress repealed Article 31 tomorrow, suspects undergoing custodial interrogation would still have to be read their rights. They just would lose the right to remain silent in non-custodial situations that they have now under Article 31.

Regarding something you said earlier, most people probably do know their rights, they just don't know when they attach. I grew up watching Adam-12 (and my bicycle was 1 Adam 12 when it wasn't 7 Mary 3), so I used to think cops had to give the Miranda warnings as soon as they arrested you.