c. Why didn't the suspect say that he had earlier asked for a lawyer? At
trial, he explained that he did not request a lawyer this time because he did
not believe he would be able to speak with one "because it was already denied
to me, two or three times." In effect, what had happened was that the suspect
had, indeed, asked for a lawyer several times. Although the apprehending MP
testified that he told MPI of the suspect's request for a lawyer, the MPI agent
said he did not remember this.
The court concluded that the MPI agent "had
been up for a considerable period of time and may either not have heard (the)
remark or may have forgotten it." Either way, there was now a serious problem
with the case, caused by the fact that the suspect had earlier asked for a
lawyer. As the Supreme Court had earlier held, a suspect's later conduct, in
response to subsequent interrogation, may not be used to render ambiguous,
ineffectual, or unclear his original request for a lawyer. The initial request
stands unless the suspect himself initiates further discussion about the
offense. The statement to the MPI investigator was ruled inadmissible, since
it was obtained in violation of the suspect's rights.
d. Unfortunately, there was even a further problem with the case.
Two
days after the MPI interview, the suspect had been questioned by his commander,
CPT Fox. CPT Fox testified that she knew the soldier had been apprehended, but
that she did NOT know that he had (a) made any statement, or (b) asked for a
lawyer. Even though she first advised the suspect of his rights, his statement
to her was also ruled inadmissible. U.S. v. Goodson, 22 MJ 947 (ACMR, 1986).
The commander had questioned the suspect at 1630 hours on 2 March.
Before
doing so, she had gone to the MP station and read the blotter report.
Although, as stated, she did not know the suspect had made any statement, she
knew he had been apprehended and was "sure that he was questioned." When CPT
Fox advised the suspect of his rights, he did not request a lawyer, or tell her
he had previously asked for one; again, he confessed. This is essentially what
had happened when he was questioned by the MPI investigator.
e. The court explained the reason for this rule: "The rationale behind
imputing knowledge is clear: if the concern of Miranda and Edwards is the
prevention of the widespread problems of police violating Fifth Amendment
protections, failure to impute knowledge to commanders will provide a ready
conduit (means) for by-passing Edwards." As for CPT Fox, she knew the suspect
had been involved with the police, and was convinced that he had been
questioned.
"It certainly would not be overburdensome for a commander in a
similar situation to ask the suspect if he had previously requested counsel...
Additionally, the military police were at least negligent in failing to inform
CPT Fox that counsel had been invoked."
The court would not penalize the
suspect for the government's failures. Indeed, the court noted that the fact
that counsel had been requested could "be easily noted on the MP blotter."
Such a "simple procedure" could have solved the problem.
f. The problem also came up in U.S. v. Reeves, 20 MJ 234 (CMA, 1985).
There, the CID agent advised the suspect of his rights and the suspect asked
for a lawyer.
The interview was immediately stopped and the suspect was
released to the military police, to be taken to the stockade. The CID agent
did not mention to the military police the fact that the suspect had asked for
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