CAAF decided the Air Force case of United States v. Condon, __ M.J. __, No.17-0392/AF (CAAFlog case page) (link to slip op.), on March 1, 2018. In a short, fact-specific opinion the court unanimously concludes that it was harmless to show the members a video of the appellant’s interrogation during which he invoked his right to counsel, affirming the decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members. It is similarly – and almost summarily – resolved here, with Chief Judge Stucky writing “that the military judge did not abuse his discretion in failing to give the proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members.” Slip op. at 3.

The specified issue, however, addresses the fact that Condon was interrogated by the Air Force Office of Special Investigations (AFOSI), during which he invoked his right to counsel. The investigators then told Condon that they had a warrant to search his home and asked for a key. Condon then decided to resume the interrogation. The entire process was recorded on video.

Over defense objection, the entire video (including the rights invocation) was played for the members, because the military judge “conclud[ed] it would be less confusing for the members if he gave the limiting instruction on the invocation than to redact the invocation and instruct the members on the resulting gap in the recording.” Slip op. at 3.

CAAF doesn’t find this was error. Instead, it concludes that:

we need not determine whether the admission of [Condon’s] invocation was error because we conclude he suffered no prejudice as a result—that is, even if the members were aware of the invocation later, the inclusion of it was unimportant in relation to everything else the panel considered in the case.

Slip op. at 4 (marks and citation omitted).

Chief Judge Stucky explains that because the admission of the invocation involves Condon’s Fifth Amendment rights, “the alleged error is of constitutional dimensions, [and so] we must conclude beyond a reasonable doubt that it was harmless before we can affirm.” Slip op. at 4 (citing United States v. Jerkins, __ M.J. __ (C.A.A.F. Feb. 8, 2018) (CAAFlog case page)). “To conclude that such an error is harmless beyond a reasonable doubt, we must be convinced that the error did not contribute to the verdict.” Slip op. at 4. (citing United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. Jan. 26, 2018) (CAAFlog case page)). But three factors support harmlessness.

First, “the invocation issue played a minor role in Appellant’s court-martial.” Slip op. at 5.

“Second, the members did not see Appellant’s invocation in a vacuum. Having just heard the military judge’s instruction not to make an adverse inference from Appellant’s invocation, the members heard Appellant’s invocation followed by his continuing proclamations of his innocence throughout the interrogation.” Slip 5.

Third, “the Government had a strong case against Appellant.” Slip op. at 5.

Chief Judge Stucky then summarizes:

In defense counsel’s own words, Appellant’s invocation comprised a “very narrow portion” of the AFOSI interrogation video. Considering the length of the trial; the military judge’s preemptive instructions to the members regarding Appellant’s invocation; the brevity of the invocation; the absence of any other mention, by anyone, of the invocation throughout the remaining four days of the court-martial; and the strength of the Government’s case against Appellant, we conclude there is no reasonable probability the admission of Appellant’s invocation contributed to the verdict. Therefore, we hold that Appellant suffered no prejudice by the admission of his invocation of his right to counsel.

Slip op. at 5-6.

Case Links:
• AFCCA decision
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: Showing the members video of the appellant’s invocation of his right to counsel was harmless beyond a reasonable doubt, in United States v. Condon”

  1. Nathan Freeburg says:

    wow. This one really really infuriates me. 

  2. k fischer says:

    Here’s my False Allegation Prevention (FAP) brief: 
    Gentlemen, if a woman says she is into BDSM in the sub role and she has a Borderline Personality Disorder, then she is likely to falsely accuse you when the relationship goes sideways.  Condon was clearly dating these women at the same time.  SA AD found out he was being investigated for sexual assault, so she knew he was seeing other women.  A1C ML found out he was still creeping on Craigslist, so she knew he was seeing other women. 
    Females with BPD are great when you first meet them.  They say they do everything you want to do.  They put you on a pedestal.  They tell you things that you think are true, but if you peel back the onion a little bit, you learn they are not true or majorly embellished.  But, when they feel scorned or abandoned, you better look out because like Glenn Close said in “Fatal Attraction,” [they] will not be ignored.  They immediately devalue you and adversely reevaluate everything you’ve done with them in the past.  So, when you have engaged in BDSM with them, there will be marks.  There will be acts that would otherwise be considered nonconsensual physical assault.  And they will say that they did not want it to happen.  Think how easy it would be for them to call you up for one last rough tryst, then go to law enforcement.  And the easy motive to fabricate equalizer?  File a Restricted report first, then change your mind because “you don’t want this to happen to someone else.”
    For example, look at the facts from the Appellant’s brief with SA AD.  She’s at the bar, she says she wants to take her sexy man back to her place, they have a date planned for a couple of days later, she has 5 drinks over 5 hours, she texts him to come over, she walks up and down stairs to let him into her place, she admits that she said, “I want to f*** you” before they had sex, but tells him that he should have said, “No” because she couldn’t remember anything and was incapable of consenting due to intoxication.  Convicted.  30 years in prison.  (I would submit that if Condon was in the male sub role with SA AD in the female dom who used a strap on to sodomize him in the past, he had 10 drinks in 5 hours, texted her to come over, admitted on a recording that he said “I want you to sodomize me, but you should have refused because I was too drunk,” then he would have been laughed out of the OSI office.  But, like they say, “the future is female.”)
    I don’t think that the average person, let alone panel member, understands BDSM.  They hear choking, slapping, whipping, etc, and they think force. When the female says that she tried to stop the relationship, then they think there was no consent.   And, panel members tune out the male dom saying, “But, she was into it” because they just don’t get it.  Does that mean that if a woman is into BDSM, then she can never be raped?  No.  But, there should be better evidence than what was presented in Condon.
    These cases are very complex, and practitioners dealing with these factual issues need to overcome the presumed narcissism of him by showing the panel how these relationships have the very real possibility of leading to false allegations by a female with a possible BPD.  And, I highly doubt that any of the Judges on the CAAF have read the 50 Shades of Grey trilogy.  But, considering that of the 45 million copies of the trilogy sold in the US, 80% of purchasers were women (36 million).  This is an issue that is going to be seen more and more in the future.
    To get back to the CAAF opinion, with all the issues raised and addressed in the AFCCA, I’m disappointed that the issues dealing with the incapacity instruction and invocation of rights were the only ones certified. 

  3. Shawn says:

    k fischer:  Everyone in the Armed Forces ought to read those words of yours.  They ought to teach it in boot camp.  All they taught me at MCRD San Diego was never to f*** the ubiquitous under-18 year-olds.  Gunny was quite firm about that.  It was all you needed to know, back then.  But I got out in ’69, long before the future, as you insightfully quote, became female.

  4. Philip D. Cave says:

    I’ve done half a dozen BDSM cases.  The first thing you have to deal with is that the MJ (and CCA) will deny a request for an expert in alternate sexual lifestyles where

    According to a 2005 survey by Durex, 36 percent of adults in the United States use masks, blindfolds and bondage tools during sex. Worldwide that number is only 20  percent. Melanie Berliet at Pacific Standard, reports that the trend isn’t new, either — a study from 1953 found that 55 percent of women and 50 percent of men liked being bitten, and a 1999 study said that 65 percent of university students dream about being tied up.  There have been many efforts by institutions [which could include courts] to marginalize subgroups, including members of sexual minorities, of which BDSM is considered a part. Mental health professionals have sometimes been insensitive to the BDSM community and have oftentimes lacked accurate knowledge or understanding about the BDSM community.  See, BDSM, TA \l "BDSM,"
    \s "BDSM," \c 3 .        Although these sexual preferences are relatively common, people still feel the need to hide them.  So reports Rose Eveleth, Americans Are More Into BDSM Than The Rest of the World., February 10, 2014 TA \l "Rose Eveleth, Americans Are More Into BDSM
    Than The Rest of the World., February 10, 2014" \s
    "Rose Eveleth, Americans Are More Into BDSM Than The Rest of the World., February 10, 2014" \c 3 .  Etc., etc., etc.

    The second thing is similar to CP cases where you get tired of looking at fetlife ads and BDSM videos.