This case presents a government appeal of a military judge's ruling to exclude all testimony of a CID agent based on a Kastigar problem. (NB) This case might have turned out differently had the CID recorded the Appellant’s earlier statements.
1. Appellant was interrogated by CID for his involvement in the murder of two soldiers—but the interrogation was not recorded.
2. Appellant was then reinterviewed under a grant of immunity. This interrogation happened over two days for a total of about eight to 10 hours.
3. Appellant’s subsequent guilty plea as an aider or abettor was set aside and a rehearing commenced.
4. In a pretrial interview with the new prosecutor’s the CID agent, according to the MJ’s finding of fact, disclosed “immunized information” to them ""after the prosecution team warned him to not reveal any immunized information to them."?"
5. Trial litigation ensued from which the military judge determined, in part, that
Not only [has SA AA's] anticipated testimony been so colored, so has his subjective belief that the non-immunized and non-'minimized' statements are the more accurate statements of the accused. At some immeasurable level, his belief stands to impact the factfinder indirectly in the form of his credibility on the stand. Stated another way, SA [AA] presents as a confident witness, resolute that his testimony accurately reflects his memory. Yet, the Government has not disproven that his confident resoluteness is in any way the product of the immunized statements.
Perhaps in the background people were wondering how the CID agent could have such a great (confident) memory of two lengthy interrogations at least four years earlier. Had the interrogation and the immunized interview been recorded, all the CID agent would have been needed for was to lay a foundation for introduction of the two interviews.
For many years investigators had resisted recording interrogations out of fear there would be more suppression litigation. Experience has shown the value of recording interrogations and interviews. People are still confessing, it's harder to challenge a recorded interview, and problems such as happened in Thompson are potentially avoided.
Jones is a reminder, primarily to military judges, that when an accused "raises" a potential defense during his sentencing case, it's a good idea to reopen the providence inquiry.
Jones pled guilty to conspiracy to sell and selling government property and use of marijuana.
The stipulation of fact and statements to the military judge in providency denied any defenses. Although there was a statement that "he was feeling "really depressed" and smoked the marijuana because he thought it would make him feel better."
During sentencing a defense witness said he thought Jones was "depressed" at the time of the offenses and during an unsworn statement Jones said he was "very depressed," had "very suicidal thoughts," and this lead him to smoke marijuana. He also referenced receiving counseling and a desire to continuance counseling. The court finds the questions from the DC to Appellant leading to the statements about mental health to be "inartful." While the facts here don't present a defense, an artful suggestion would be that his mental state can be "evidence" of extenuation and mitigation, and his statements about getting help is "evidence" of rehabilitative potential. (The statements were from the unsworn. Was there evidence through records of any screening and counseling which could support the unsworn?)
The military judge did not reopen providency.
On appeal, the court found forfeiture of the issue and proceeded to a plain error analysis of an improvident plea.
The court found "obvious error" in not following R.C.M. 912(h)(2). (Trial counsel take note. While it's the duty of the military judge to resolve inconsistencies in the plea, it may be a really good idea for the prosecution to ask the MJ to do that when a potential inconsistency arises.) But there was no prejudice and
Without a substantial question concerning the plea, we find an R.C.M. 706 inquiry unnecessary. This finding is buttressed by appellant's declination to raise the issue on appeal. This issue could have been resolved quickly by reopening the providence inquiry, and so we reiterate the requirement to resolve inconsistencies during a guilty plea remains both proper procedure and best practice.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook