a lawyer, "because no one was going to interview him again." Later that day,
however, the accused's commander went to the stockade to talk with the suspect.
The commander read the soldier his rights, and the soldier made no request for
counsel.
Nor did the soldier mention the earlier conversation with the CID
agent wherein he HAD asked for an attorney. Instead, the soldier waived his
rights and confessed to his commander.
g. Here, then, the soldier had originally made a clear request for a
lawyer. The government was not, then, free to interrogate him further. Again,
a suspect's response to later interrogation (after he had requested the
attorney) may not be used to cast doubt or uncertainty upon his original
request for a lawyer. To rely on the suspect's failure to repeat his earlier
request for counsel would involve "the same sin" the courts had previously
condemned. The case, then, was sent back to the lower court. The lower court
(Army Court of Military Review) first held that Edwards does apply "to
discussions with military commanders." Also, the suspect had not initiated the
conversation with his commander.
The CID agent "was at least negligent in
failing to notify either the military police or (the suspect's commander) that
(the suspect) had requested to consult with counsel."
The CID agent "should
have recognized that someone else might attempt to question" the suspect. The
agent's testimony that he thought nobody else would attempt to question the
suspect was viewed as "incredible." The confession to the commander was, then,
inadmissible. U.S. v. Reeves, 21 MJ 768 (ACMR, 1985). There is no exception
for questioning by the accused's company commander, U.S. v. Brabant, 27 MJ 899
(AFCMR, 1988).
h. Again, the court decisions impose a responsibility upon the government.
Those who question the suspect must understand that responsibility, and act
accordingly. To ignore what may have happened earlier in a case is to act at
one's peril. The investigator who neglects to find out what happened earlier
in a case may create an unnecessary mass of confusion which the courts will
later have to untangle.
The same is true for the initial investigator who
fails to communicate with those who come after him. A classic example of what
can happen is U.S. v. Harris, 16 MJ 562 (ACMR, 1983).
i. The issue arose on July 8, 1981, when 45 plastic baggies containing 150
grams of marijuana were found among a soldier's possessions during a health and
welfare inspection. The military police were called and arrived at the unit to
apprehend the soldier. When he was advised of his rights, the soldier asked
for an attorney. The military police then transported the suspect to the MP
station, where he remained in custody "awaiting interrogation by investigators
of the Joint Drug Suppression Team (JDST)." The MP, "for reasons unexplained,"
did not advise the JDST agents of the suspect's request for an attorney.
Instead, about three hours later, the JDST agents began to interview the
suspect.
They advised him of his rights and he agreed to make a statement.
One of the JDST agents testified that "I specifically asked him during the
rights advisement if he had been advised of his rights by the military police
and requested a lawyer, and he replied no."
At any rate, this time, the
suspect waived his rights and made a statement denying guilt. The JDST agents
did not believe the suspect, so they brought
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