CAAF will hear oral argument in the Coast Guard case of United States v. Harpole, No.17-0171/CG (CAAFlog case page), on Wednesday, December 6, 2017, at 9:30 a.m.

The case involves statements made by the appellant to a military victim advocate regarding the sexual encounter forming the basis for his convictions. Those statements were admitted into evidence after the military judge concluded that Mil. R. Evid. 514 (the victim advocate-victim privilege) did not apply because a third party was present when the statements were made. The Coast Guard CCA affirmed that ruling.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

The third granted issue was not briefed and was resolved by United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page).

After a night of drinking during a port call in Tahiti, Seaman (E-3) Harpole went into a four-person female stateroom aboard the USCGC Polar Star, ostensibly to retrieve his backpack from the alleged victim, SK3 GR. While he was in the room, he and GR had sex. GR was later confronted by her roommates about the encounter but stated she could not remember what happened (because she too had been drinking during the port call). She then reported the incident as a sexual assault and was transferred off the vessel.

After GR’s transfer, Harpole talked about the incident with his roommate, SNBM Childers. Harpole told Childers that he too couldn’t remember what happened. Together, Harpole and Childers then went to the ship’s victim advocate, YN1 Nipp. Harpole discussed the incident with the victim advocate while his roommate was present. Eventually, at trial, the victim advocate testified about that discussion after the military judge overruled Harpole’s invocation of the victim advocate-victim privilege. The military judge concluded that Harpole’s statements to the victim advocate were not privileged because Harpole’s roommate was present when the statements were made.

A general court-martial composed of members with enlisted representation convicted Harpole, contrary to his pleas of not guilty, of making a false official statement, two specifications of sexual assault, and housebreaking, and sentenced him to confinement for seven years, reduction to E-1, and a dishonorable discharge.

The general rule for the victim advocate-victim privilege is that:

A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.

Mil. R. Evid. 514(a) (emphasis added). A communication is only confidential,  however:

if made in the course of the victim advocate-victim relationship or Department of Defense Safe Helpline staff-victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.

Mil. R. Evid. 514(b)(4). And so Harpole’s brief argues that even though his roommate was present during his conversation with the victim advocate, the roommate’s “presence furthered the rendition of assistance.” App. Br. at 12. The basis for this argument is that:

YN1 Nipp [the victim advocate] stated that SN Harpole wanted to speak to a victim advocate, not simply YN1 Nipp in her personal capacity. She also stated that she took SN Harpole to a lounge in order for them to have privacy, which SN Harpole accepted. SNBM Childers [the roommate] said that SN Harpole needed his help going to talk to YN1 Nipp. And finally, SNBM Childers said that SN Harpole asked SNBM Childers to stay with him in the lounge for support.

App. Br. at 12-13.

The Coast Guard Government Appellate Division’s response includes the argument that:

Untrained friends of the patient present at the request of the patient for moral support do not aid in providing professional services. Nor do they aid in the transmission of the communication as would, for example, a translator.

Gov’t Div. Br. at 14. But the Government Division also argues that:

Childers describes the conversation with Appellant as containing the “exact same” information as what Appellant told YN1 Nipp. Thus, Appellant shared the overall substance of his statement with SNBM Childers, and . . . this Court should find that any available privilege was thus waived.

Gov’t Div. Br. at 10-11 (citation to record omitted). Harpole didn’t file a reply brief addressing this waiver argument or providing additional argument for why his statements to the victim advocate were confidential despite the presence of his roommate.

Harpole alternatively argues that his statements to the victim advocate should have been suppressed because the victim advocate knew he was suspected of sexual assault but did not give him an Article 31(b) rights advisory. Defense counsel did not, however, seek suppression at trial, and so this issue is raised as a question of ineffective assistance of counsel. The first step to finding ineffectiveness is finding deficient performance, and so Harpole must convince CAAF that the statement should have been suppressed. His argument for suppression is essentially that:

Here, YN1 Nipp was freelancing as a self-appointed CGIS agent. She acted pursuant to an official investigative or disciplinary function because 1) she had prior knowledge of the case and she was conflicted from acting as his victim advocate; 2) the difference in their rank created a presumptively coercive environment; and 3) YN1 Nipp knew that this case stemmed from a law enforcement investigation and the type of questions she asked induced SN Harpole’s admissions.

App. Br. at 20. It’s an argument that could find traction. But Harpole must also show that the deficient performance affected the result, and the Government Division’s brief makes that seem impossible:

As a motion to suppress on the basis of an Article 31(b), UCMJ, violation would have been without merit, and the content of Appellant’s statement to YN1 Nipp would have been available through the testimony of SNBM Childers, Appellant has failed to meet his burden and show that the outcome of the proceedings would not have been different.

Gov’t Div. Br. at 41.

The fact that Harpole’s statements to the victim advocate were substantially identical to his statements to his roommate certainly seems to be an insurmountable hurdle to relief because the statements to the roommate could have been admitted regardless of whether the victim advocate-victim privilege applied to, or Article 31(b) was implicated by, the statements to the victim advocate.

CAAF could find that statements made to a third-party prior to deciding to speak to a victim advocate are part of the victim advocate-victim relationship, but that would be a very expansive reading of the privilege and “because privileges ‘run contrary to a court’s truth-seeking function,’ they are narrowly construed.” United States v. Jasper, 72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)).

Accordingly, tomorrow’s oral argument will likely focus on why any error is not harmless.

Case Links:
• CGCCA opinion
• Blog post: CAAF grant
• Appellant’s brief
• Appellee’s (C.G. Gov’t App. Div.) answer
Blog post: Argument preview

3 Responses to “Argument Preview: Whether an accused’s statements to a victim advocate should have been suppressed (and whether it matters) in United States v. Harpole”

  1. Cloudesley Shovell says:

    Perhaps CAAF intends to use this case to state that, any case law to the contrary notwithstanding, Art. 31 actually means what it saws, plainly and unambiguously. 
    If CAAF were as forgiving of breaches of the UCMJ by various accuseds as they are of gov’t breaches of those articles of the UCMJ intended to constrain the gov’t, nobody would get convicted of anything.  High time to change that double standard.
    Kind regards,

  2. DCGoneGalt says:

    I wonder if the government position on the rule would be the opposite if the complainant was the one making the statement instead of an accused.  JK, I don’t wonder.  

  3. K fischer says:

    So, I’m sitting there reading this post and none of the briefs. I read dumbfounded, (which I admit is typical), as to why there would be a victim advocate privilege to him as the Accused.  Why would that matter?  Sounds like he was so stupid that he made a voluntary admission.
    Then, I realized that if he was too drunk to consent, then HE is a victim, as well.  Shame on me for my gender bias.