in the "senior investigator of the JDST to continue the interview." He, too,
was unaware of the suspect's original request for counsel, but did determine
that the suspect had been advised of his rights by the other JDST teams, had
understood them, and that the suspect still wished to make a statement without
legal counsel being present. When questioned by this individual, the suspect
now confessed.
j. The first stage of the battle was the appeal to the Army Court of
Military Review (ACMR). The issue was whether the JDST interrogation was in
violation of the suspect's request for counsel.
The court explained that a
suspect could countermand his request for counsel and change his mind. Under
the facts of this case, the court held that the suspect was subjected "to a
subsequent interrogation by JDST agents without counsel being present."
The
subject had clearly asked for an attorney, and had obviously not initiated the
subsequent interrogation by the JDST agents.
The question, however: had the
subject, by his own actions, waived his earlier request for counsel?
The
purpose of the Edwards rule, again, was to prevent the police from wearing down
the suspect through repeated confrontations.
The court said, then, that
Edwards would not apply "to keep evidence given to the police by an accused who
has, by his own affirmative action, countermanded an earlier request for
counsel."
k. The court then concluded that "well-meaning JDST agents acted with care
and circumspection in an attempt to ensure that appellant's rights were not
violated. Having no knowledge of appellant's earlier request for counsel, they
advised him of his rights and specifically asked him if he had previously
requested counsel from other police officers.
Upon receiving his negative
reply, they proceeded to interrogate him." Here, the court held that there was
more than mere "good faith." The suspect "lied to the JDST agents about his
prior request for counsel... Its effect was to prevent the JDST agents from
obtaining counsel for him."
If the suspect did not obtain the services of
counsel, "it was because of his own voluntary, knowing, and intelligence act,
rather than because the police subtly induced him to change his mind." By his
actions, then, the suspect had "countermanded his original request for
counsel." The government won round one of the battle, and the confession was
ruled admissible. The war, however, raged on.
1. The case next went upon appeal to the Court of Military Appeals (COMA).
In U.S. v. Harris, 19 MJ 331 (CMA, 1985), the issue was, again, the
admissibility of the suspect's confession. The court explained that the MP who
originally apprehended the suspect had decided to contact CID due to the
quantity of contraband that had' been found. The MP testified in court that
"the military police would work with the MPI and the CID, so that they become
one law enforcement agency working together." The MP also testified that he
"did not recall" whether or not he had informed CID of the suspect's initial
request for a lawyer, but said that he had not himself tried to call a lawyer
for the suspect. The court further held that the JDST investigators had talked
to the MP who apprehended the suspect. The suspect did not request a lawyer
when the JDST agents advised him of his rights, and the JDST investigators were
not aware of the suspect's earlier request for an attorney.
One of the
investigators, you will recall, testified that he had specifically
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