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
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 op.at 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.
• 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