A recent published decision of the Air Force CCA, in United States v. Kerns, __ M.J. __, No. 38792 (A.F. Ct. Crim. App. Sep. 22, 2016) (link to slip op.), reaches two significant conclusions.

First, the CCA finds that the appellant’s statements to Air Force investigators, made ten days after he terminated a prior interrogation and asked for a lawyer, were improperly admitted by the military judge because the investigators re-initiated interrogation before expiration of the 14-day cooling-off period required by the Supreme Court in Maryland v. Shatzer, 559 U.S. 98, 110-111 (2010).

Second – and unique to military law – the CCA refuses to undertake an appellate rescue mission that might salvage the statements. Shatzer only applies if both interrogations were custodial, but none of the trial-stage participants considered Shatzer when litigating the admissibility of the appellant’s statements and the military judge made no determination about whether the first interrogation was custodial and started the 14-day clock. The prosecution, of course, had the burden to prove the admissibility of the statements at trial, and the failure to present evidence about the custodial nature of the first interrogation is a failure of proof by the prosecution. See Mil. R. Evid. 304(f)(6). See also 18 U.S.C § 3501; Lego v. Twomey, 404 U.S. 477, 489 (1972). But on appeal:

The Government argues that we should use our Article 66(c), UCMJ, 10 U.S.C. § 866(c), fact-finding power to supplement the military judge’s findings and hold that the 18 January interview was non-custodial.

Slip op. at 9. The CCA declines for numerous reasons including that “a record this undeveloped precludes us from meaningfully exercising our fact-finding power.” Slip op. at 11.

The CCA reverses all but one of the appellant’s convictions and authorizes a rehearing.

26 Responses to “The AFCCA grapples with re-initiation of interrogation, and refuses to undertake an appellate rescue mission”

  1. RKincaid3 (RK3PO) says:

    Good.  Time for the Government to actually do its job and quite waiting for (counting on?) its trial court failures to be cured on appeal.

  2. Contact Lawyer says:

    At the rehearing, he will not have the rape charges staring at the members.  Why did he have to kill the cat.  Not to minimize the domestic violence, but killing animals does not go over well with some panel members.  On the otherhand, some animal lovers do not like cats.  Still, killing the cat was a bad move.  

  3. Burt Macklin says:

    “Still, killing the cat was a bad move.”  That’s the type trenchant analysis that keeps me coming back to CAAFlog. 
    Sentencing may yet be cat-astrophic for Kerns. 

  4. Dr. U.G. Dog says:

    Everyone knows cat’s are evil.  I believe that this individual did a tremendous service to his country.
    Joking aside, huge win for the defense.  Also good to reaffirm that the 5th Amendment continues to apply even when it is in reference to a separate offense.  I have had a shocking number of bases think that they can re-interview on a new positive UA or 120 allegation on this basis.  Which of course is bunk.

  5. k fischer says:

    Contract Lawyer,
     
    He sounds like a male borderline.  Think of Glenn Close from fatal attraction, the epitome of a female borderline.  Quick start on a relationship, fear of abandonment, suicidal gestures at threat to leave, homicidal gestures, and killing pets.  I really hope that SK, for the sake of her child, never goes back to him.  As Dr. Valliere testified, pet abuse is highly correlated to partner lethality.  So, this cat killing issue is a huge problem.
     
    Does anyone know if SK testified at the Court-martial?

  6. Alfonso Decimo says:

    Based on the facts in the slip opinion, I agree the CCA didn’t have a sufficient record to find the interview was non-custodial. My guess is the CCA would make the factual finding, if at all possible based on the record. This will probably be a case-study for the next Military Judge Course in Charlottesville.

  7. k fischer says:

    Macklin…..you SOAB,
     
    I agree.  The sentence could be cat-astrophic, but only if that crime is a “Feliny”…………..

  8. Burt Macklin says:

    Watch the hy-purrr-bole k fisher

  9. k fischer says:

    Don’t make a pun out of Stewie’s favorite word; I can assure, you he won’t be ameowsed. 

  10. k fischer says:

    If CL Cat Was a public animal Then it would have been a feline – y Comma But it was charged under Article 134 as a hiss-demeanor

  11. DCGoneGalt says:

    Please stop this.  Right meow.

  12. stewie says:

    Maybe the kitty was trying to take his pot pie?

  13. J.M. says:

    This is serious stuff, stop kitten around.

  14. k fischer says:

    Too bad he snapped the cat’s neck.  I think they could have put the legs back together if they called the purramedics.

  15. (Former)ArmyTC says:

    I’m paw-sitive you guys are just clawing for these puns now. And on a Caturday at that…

  16. Scott says:

    I cat-egorically disavow this comment thread.  Y’all are purr-verted. 

  17. Vulture says:

    I am not taking any of these cat puns litterally.

  18. Concerned Defender says:

    Appellant won this by a whisker!  Seems he has 9 lives!  I’m sure he’ll land on his feet.  Ah the cat and mouse game with the interrogators never ends…

  19. Passing By says:

    Judge Castro wrote the opinion, but rumor has it that Judge Spurrranza was the driving force behind saving the specification that charged killing the cat.

  20. Burt Macklin says:

    “There’s more than one way to skin a cat.” – A1C James Kerns

  21. Alfonso Decimo says:

    Man! I saw all the posts and thought there was some big discussion on this topic, but it turns out its just like the internet generally. Full of hideous cats!

  22. J.M. says:

    Alfonso Decimo:
     
    Quite the catastrophe, isn’t it?

  23. Passing by says:

    Well, it’s a loss for the Air Force Appellate Gov’t shop, so you know it will be purr-tifed to CAAF.  When that happens, you know who will write the opinion…
    Chief Judge Purrrrdman.

  24. Lone Bear says:

    We have scratched and clawed to be taken seriously and you guys are wagging your tails, it’s time to nip this in bud.

  25. k fischer says:

    Oh AD, the wise one,

    When there are three [scratching] posts each from kf and Burt Macklin, that should be the first sign that the posts contain a lively conpurrsation about nothing of substance.

  26. Alfonso Decimo says:

    Fisher King – Thank you, I dig where you cats are coming from, but I disagree. Your insights are the cat’s pajamas.