The AFCCA grapples with re-initiation of interrogation, and refuses to undertake an appellate rescue mission
A recent published decision of the Air Force CCA, in United States v. Kerns, 75 M.J. 783, 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.