CAAF heard oral argument last week in the Article 62 appeal case of United States v. Cooper, No. 12-6004/AR. Sergeant Cooper is charged with various sexual offenses involving his step-daughter, and denies his guilt. During a pretrial session, the trial military judge found that the accused’s statements were taken in violation of Article 31(b), and ordered them suppressed. The government appealed to the Army CCA, which found the military judge’s findings and conclusions “ambiguous and incomplete on predicate issues relative to rights warnings,” and remanded for “clarification and action.” The government sought reconsideration by the CCA, which was denied. The Army JAG then certified the following issues to CAAF:

(I) Whether the military judge and the Army Court of Criminal Appeals erred in applying Michigan v. Mosley, 423 U.S. 96 (1975) as opposed to Oregon v. Bradshaw, 462 U.S. 1039 (1983) and Edwards v. Arizona, 451 U.S. 477 (1981) to the facts of this case.

(II) Whether the military judge erred in finding the Accused’s statement was involuntarily made.

(III) Whether the military judge erred in suppressing the accused’s entire typewritten statement based on a second alleged violation of his right to remain silent.

In short (and unsurprisingly), the government believes that the statements made by the accused are admissible. But the certification is about the legal test to be applied, since the CCA set-aside the military judge’s ruling suppressing the statements. In other words, the military judge suppressed statements, the government appealed, the CCA set-aside the military judge’s ruling, and then the government continued its appeals because it didn’t like the CCA’s reasoning. Who says appellate litigation isn’t fun…

The accused initially invoked his right to remain silent, but subsequently waived and participated in a long interview with CID agents. Michigan v. Mosley, 423 U.S. 96 (1975), and Oregon v. Bradshaw, 462 U.S. 1039 (1983) (and Edwards v. Arizona, 451 U.S. 477 (1981)), are cases that deal with the re-initiation of questioning after a suspect invokes. Mosley involved re-initiation by law enforcement; Bradshaw and Edwards involved re-initiation by the suspect. But Mosley involves invocation of the right to remain silent, while Bradshaw and Edwards involve invocation of the right to an attorney, and in the subject case the accused invoked his right to remain silent (assuming, of course, that he actually understood the difference between the two). As stated  in the government brief:

The Supreme Court focused on the constitutional procedures that law enforcement must follow in order to properly respect, or “scrupulously honor,” the suspect’s invocation of his right to remain silent. At its core, Mosley was concerned about controlling law enforcement so that the suspect retained the ability to cut off questioning and control the timing, subject, and duration of the interrogation. Therefore, the Supreme Court looked to procedural safeguards which would control police conduct in the law enforcement reinitiation context and “counteract the coercive pressures of the custodial setting.”

Gov’t br. at 16. The Bradshaw/Edwards rule lacks the “scrupulously honor” language of Mosley, and the government’s argument is that the accused’s statements should be analyzed under Bradshaw and Edwards, and not under Mosely.

However, during oral argument at CAAF, the court immediately seized on the simple fact that the government already won at the CCA; the military judge’s ruling suppressing the accused’s statements is set-aside. Why then, asked multiple members of the court, is this question ripe for CAAF? The government almost immediately conceded that issues II and III, that involve rulings by the military judge that the CCA set-aside, aren’t ripe, but the government argued that CAAF should rule on issue I in the interest of “judicial economy.” The defense, on the other hand, agreed with the court that the issue wasn’t ripe, but also argued against the government’s position (and in favor of applying the Mosely rule).

Ultimately, the issues were drowned out by discussion of ripeness and what the court could possibly review at such an early stage, especially since the government presently stands the winner on the suppression issue. I can’t recall an example of an Article 62 case resulting in a summary disposition after oral argument, but it did happen to a certified case last year in United States v. Humphries, which was argued again last month.

I suspect Cooper is heading down a similar path.

Update: While I started writing this post over the weekend, I didn’t finish it until Tuesday the 20th. CAAF summarily affirmed the ACCA’s opinion on Monday the 19th (daily journal updated on Tuesday the 20th).

Case Links:
ACCA’s opinion
Appellant’s (government) brief
Appellee’s brief
Appellant’s reply brief
Oral argument audio
Blog post: Argument recap

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