In an en banc opinion issued on Friday, the NMCCA finds ineffective assistance of counsel in the failure of a two-attorney defense team to move for suppression of the appellant’s statements to a Marine who questioned the appellant about his consumption of alcohol during a training event in violation of a battalion order. Judge King writes for the majority and explains that:

To be clear, we do not conclude that [the questioner] necessarily had a duty to warn the appellant of his rights under Article 31(b), nor do we hold as a matter of law that the appellant would have been successful had the motion been litigated. Instead, we find that a motion to suppress this case-dispositive evidence had a reasonable probability of success and therefore [trial defense counsels’] failure to litigate the issue is sufficient to undermine our confidence in the outcome of this court-martial.

United States v. Spurling, No. 201400124, slip op. at 12 (N-M. Ct. Crim. App. July 31, 2015) (link to slip op.) (marks omitted).

The appellant – a junior enlisted Marine – was charged with disobeying an order (to not drink alcohol during the training) and making a false official statement (for claiming that he had permission to drink alcohol when he was questioned). A special court-martial composed of members with enlisted representation acquitted the appellant of the orders violation, convicted him of making a false official statement, and sentenced him to reduction to E-1 and a bad-conduct discharge. The convening authority then suspended the bad-conduct discharge.

This is the NMCCA’s second en banc opinion in the case. In the first opinion (discussed in this post), a majority of the CCA found deficient performance by the defense but no prejudice, concluding that a motion to suppress would not have succeeded because the questioner was not acting in an official law enforcement or disciplinary capacity. However, in an action discussed here, CAAF summarily reversed and remanded for consideration in light of its decision in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page). CAAF also took issue with the standard that the NMCCA applied to determine the merit of any motion to suppress.

On remand, the NMCCA again finds deficient performance in the failure of defense counsel to move for suppression (noting, as it did in the first opinion, that “TDC concede that they failed to recognize the issue”). Slip op. at 6-7. But the court reaches a different result regarding the merit of a motion to suppress, focusing its analysis on the second textual predicate of Article 31(b): that rights warnings are only required when a questioner “interrogates or requests any statement.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page).

Writing for the majority, Judge King finds that:

it is clear that Cpl Brooks [the questioner] was not acting in an operational, safety, or personal capacity. Instead, he saw a crime [violation of the no alcohol order] being committed and he questioned the one he suspected of committing it. While the dissent classifies this questioning as “informal” and only an attempt to “correct this junior Marine’s deficient behavior,” it is at least as reasonable to conclude that Cpl Brooks’ intended to enforce compliance with the order the appellant was violating and then ensure that such violation was reported to the appellant’s immediate superior for action.

Slip op. at 10-11. Judge King also finds that:

That “a reasonable man in the appellant’s position” would have concluded that Cpl Brooks was acting in a disciplinary capacity is also probable.

Slip op. at 11. Considering the dissenting view of Chief Judge Mitchell – who would find that the questioning was informal in nature and did not require a rights advisory – Judge King highlights the fact that the record is unclear on crucial points because the issue was not litigated:

the dissent’s opinion is founded upon the conclusion that the interaction between Cpl Brooks and the appellant was not “disciplinary” but merely a “teachable moment” or simply “informal counseling.” While we allow such a conclusion may be true, we also recognize that it may not. We reiterate that we do not know the answer to that critical question because the issue was not raised and litigated at trial.

Slip op. at 12.

16 Responses to “The NMCCA finds IAC in Spurling”

  1. Michael Lowrey says:

    The opinion notes that Judge Palmer didn’t participate in the decision. Would that be Lt. Col. Robert Palmer, best known for comments he made at a professional military education while serving as a military judge?

  2. Zachary D Spilman says:

    No. It would be Colonel Brian Palmer who recently joined the CCA.

  3. DCGoneGalt says:

    Whew, I was hoping it wasn’t the infamous “they’re all guilty” commentator most known for Addicted to Love.

  4. Alfonso Decimo says:

    Do the administrators of this blog have a policy against ad hominem attacks? Is the above comment really necessary?  

  5. DCGoneGalt says:

    Ad hominem? For referring to “they’re all guilty” when the comments were:

    Defense attorneys say Palmer’s comments at a two-hour session at the Marine Corps Air Station Beaufort in South Carolina revealed a pronounced anti-defense bias. His alleged comments ranged from calling defendants “scumbags” and labeling military jurors “morons” and “knuckleheads,” to asserting that “the defendant is guilty; he wouldn’t be here at this stage in trial if he wasn’t guilty.”
    Ad hominem is an attack against a person.  A comment on the views of a person who made those statements is not ad hominem nor is a comment on the fitness of that person to serve as a judge when they made those comments, even in a “joking manner”.
    Read more here:

  6. DCGoneGalt says:

    Or maybe you’re just a big fan of “Simply Irresistible”.

  7. stewie says:

    I hear some like it hot, and some sweat when the heat is on.

  8. Tami a/k/a Princess Leia says:

    Takes Every Kinda’ People to Work to Make it Work….

  9. stewie says:

    Tami I think that one goes too deep into a limited collection. What is that even from?

  10. Alfonso Decimo says:

    DC – OK, so we may all judge each other’s fitness based on our comments, even those made in a joking manner.  I just wanted some clarification on the rules. Thanks.

  11. DCGoneGalt says:

    I was hoping the post wasn’t the person who made the “joking” comments.  Because I think the entire system is off-kilter on the very issue on which to “jokes” we’re made.  And the jokes were made by a military judge, not an anonymous commenter on a blog.  If one wants to vent their spleen debating military justice with humorous commentary perhaps it should have been done on CAAFLOG.
    it is not ad hominem to comment on whether, when someone’s “jokes” in that setting become publicly known, it is appropriate for them to serve as a judge on the same class of cases on which they “joked”.  Some people get to partake in the freedom to say whatever they want on whatever issue they want, judges don’t.

  12. Fortherecord says:

    But Col Brian Palmer was the strangely irrelevant character witness for LtCol Palmer in one of LtCol Palmer’s hearings.

  13. k fischer says:

    So, on the flip side, nobody has to take back or apologize when they say something offensive; instead, they merely have to say, “I was joking?”  Is that how it works?  Well then, I take back every time I apologized and replace it with “I was just joking.  Don’t judge me or attack me ad hominemly.” 
    Actually, I’m just joking about that, unless someone finds this post offensive, which I offer in advance my apology.

  14. DCGoneGalt says:

    k fisch:  I have already been shown to be 100% wrong once today but I don’t think the comments were offensive but instead showed a view that the prosecutors adopt a mindset that an accused wouldn’t be at trial of he wasn’t guilty.  However, I think the rule you are referring to is a disclaimer that has to be given up front.  Exs:  “With all due respect . . . ” and “No offense but . . .”

  15. Alfonso Decimo says:

    KF – This is a good discussion and you have a good point. Those is certain positions will be criticized for the content of their comments. I would add that (in this era) public figures (great and small) must assume every communication is public.
    This discussion reminds me of the Air Force Major General, who made the mistake of relying on the academic non-attribution standard when speaking at a conference. Because of his use of hyperbole he was relieved of command and reprimanded.  He also made the mistake of trying to explain the event to the press, resulting in derision for a “non-apology-apology” and having to an apology do-over.

  16. k fischer says:

    Agreed.  As someone who has regrettably hit ‘send’ on a few ill advised comments on this blog and who appreciates Judges who suffer from the same malady during bridge the gaps as it is really good G2 when deciding forum, I can empathize with Judge Palmer’s statements.  I would prefer that a MJ comes out and tell me things like that, even kiddingly, so I know that I should strongly consider going panel.  The dangerous ones are the ones who are smart enough not to telegraph that they truly feel that way.  Plus, he’s a Marine, so I have a presumptively more favorable than not opinion that must be overcome with clear and convincing evidence, even though I know nothing about the man other than what I have read.  So, I likely give the benefit of the doubt that the things said were more kidding than serious.