Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.

Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).

Frankly this is a real world interaction and accounts for real world talk not fully appreciated, or perhaps ignored in Davis. The police here did what they often do and told the accused that having a lawyer wouldn’t help. True, it’s the 9th, the most slapped down circuit.

As to Berghuis v. Thompkins, Kent Scheidegger of crimeandconsequences blog says:

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today’s decision involves what is needed to establish whether a suspect invoked or waived his rights. To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The Wall Street Journal Law Blog notes:

The 5-4 ruling fell on predictable lines, with Chief Justice Roberts and Justices Scalia, Alito and Thomas joining Justice Kennedy’s majority opinion. Justice Sotomayor wrote a dissent, which was joined by Justices Ginsburg, Breyer and Stevens.

The opinion effectively aligns the exercise of the two rights – silence and counsel – into an unambiguous request. See Davis v. United States, as to the requirement to unambiguously request counsel.

As to Carr v. United States, SCOTUSBlog summarizes that:

The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This case has potential impact for military appellate counsel and their clients whose cases are still on appeal. A SORNA conviction presumably could result in additional court-martial action against an appellant on appellate leave pending completion of appellate review. Also, those whose cases are final but are released on parole or supervised release may be affected.

The Court instead accepts Carr’s interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA’s registration requirements, travelsacross state lines and then fails to register.

Carr, Slip Op. at 1.

The Eleventh Circuit upheld the conviction finding that (1) Miranda warnings were unnecessary; (2) the statute applied extraterritorially; and (3) the “purchase” of a child may occur through payment directly to the child, rather than a third party. The Court found that generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Moreover, the joint venture exception does not apply because American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation.

Seems to me the result would be the same in a court-martial where the issue could be Article 31, UCMJ, as well as Miranda.

As for the extraterritorial application of the statute, the Court found that because Section 2251A requires that in the course of the prohibited conduct, the defendant or minor “travel[ ] in … interstate or foreign commerce,” Congress plainly intended that the statute sweep broadly and apply extraterritorially. The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially. Moreover, such an intent is consistent with international law, which permits jurisdiction under the “nationality” principle.

In Powell the issue was whether the rights advice given properly conveyed to the suspect that he had the right to counsel present during questioning and not just before being questioned. After an interesting discussion showing how ambiguous the language used was, the court found the appellant was adequately advised. Interestingly, the court noted that:

The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid., n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message.

Slip op. at 13.

As an example, DA Form 3881, states:

(For personnel subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both. (For civilians not subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. I understand that this lawyer can be one that I arrange for at my own expense, or if I cannot afford a lawyer and want one, a lawyer will be appointed for me before any questioning begins.

The Navy IG uses this format:

I have the right to consult with lawyer/counsel prior to any questioning. This lawyer/ counsel may be a civilian lawyer retained by me at my own expense, a military lawyer appointed to act as my counsel without cost to me, or both; I have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview.

CAAF had decided the Shatzer break in custody situation for military cases, primarily in United States v. Vaughters, 44 MJ 377 (C.A.A.F. 1996).

The granted issue in this case challenges the holding of the Court of Criminal Appeals that Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), did not apply in appellant’s case. See generally Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). In Edwards, the Supreme Court held that once an individual in custody asserts his right to counsel under the Fifth Amendment all interrogation must cease until counsel is “made available” or the accused “initiates further communication…with the police.” Id. at 484-85. The service court below held that custodial interrogation may be reinitiated without counsel being present where a suspect had been released from custody for 19 days, provided a meaningful opportunity to consult with counsel, and subsequently waived his right to counsel. We agree with the Court of Criminal Appeals that this holding does not violate Edwards. See United States v. Schake, supra. In Schake, this Court addressed the question whether Edwards v. Arizona, supra, was applicable in the break-in-custody (6 days) context. A majority of this Court held [that a six day break in custody was a sufficient break so that Edwards did not bar the confession.]

United States v. Vaughters, 44 M.J. 377, 378 (C.A.A.F. 1996).

In Shatzer the Court holds that a “break in custody” allows the police to restart questioning a suspect who invoked. This is an exception to Edwards v. Arizona, 451 U.S 477 (1981). Erin Miller of SCOTUSBlog notes that seven justices would hold that if there is a break of at least 14 days, Edwards does not even apply. Vaughters had a 19 day break in custody.

The media continues to make the comment that investigators are waiting to talk with Major Hasan, at Fort Hood, and once they do we’ll know more about his motives. Huh? We’ll find out at court-martial what each party is suggesting are the reasons and motives, but unlikely before then, except for the continual extra-judicial statements by people close to the investigation who have been told not to talk about it but are quite happy to without a name.

Major Hasan asked for counsel, he’s got counsel; he’s a represented accused; charges are preferred; and he’s apparently in custody. So . . .

Under Article 31, UCMJ, Major Hasan has the right to silence, and under United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and Miranda v. Arizona, 384 U.S. 436 (1966), he has the right to counsel. He’s exercised that right, therefore investigators can’t talk with him. Under the Fifth Amendment, the same answer. For the uninformed, it was the military practice of advising people of their rights before interrogation that became part of the reasoning for Miranda. In Miranda, the United States Supreme Court noted:

Similarly, in our country, the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement, and that any statement he makes may be used against him. Denial of the right to consult counsel during interrogation has also been proscribed by military tribunals. There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described.

Miranda v. Arizona, 384 U.S. at 488.

In Tempia, the then Court of Military Appeals had a couple of interesting things to say about rights in the military. More generally they reference Jacoby, and then Miranda.

In United States v Jacoby, 11 USCMA 428, 29 CMR 244, we expressly said, at page 430: “. . . [I]t is apparent that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces. Burns v Wilson, 346 US 137 (1953); Shapiro v United States, 107 Ct Cl 650, 69 F Supp 205 (1947); United States v Hiatt, 141 F2d 664 (CA 3d Cir) (1944).”

Tempia, 16 U.S.C.M.A. at 634, 37 C.M.R. at 254.

Accordingly, we cannot accept the Government’s ingenious argument that Miranda, supra, does not deal with constitutional principles and, hence, may be rejected by this Court, in light of the safeguards with which a military accused has heretofore been protected. As the Chief Judge has noted, the views of “the Supreme Court of the United States on constitutional issues” are binding on us.

Tempia, 16 U.S.C.M.A. at 635, 37 C.M.R. at 255.

Military Rule of Evidence 305(e) has some relevant proscriptions, both of which seem to apply:

(e) Presence of Counsel. (1) Custodial interrogation. Absent a valid waiver of counsel under subdivision (g)(2)(B), when an accused or person suspected of an offense is subjected to custodial interrogation under circumstances described under subdivision (d)(1)(A) of this rule, and the accused or suspect requests counsel, counsel must be present before any subsequent custodial interrogation may proceed. (2) Post-preferral interrogation. Absent a valid waiver of counsel under subdivision (g)(2)(C), when an accused or person suspected of an offense is subjected to interrogation under circumstances described in subdivision (d)(1)(B) of this rule, and the accused or suspect either requests counsel or has an appointed or retained counsel, counsel must be present before any subsequent interrogation concerning that offense may proceed.

If investigators want to talk with Major Hasan about his shootings at Fort Hood it would seem there would have to be three pieces of paper on the table at minimum: a testimonial/ transactional grant of immunity from the U.S. Attorney, a testimonial/transactional grant of immunity from the appropriate Texas authority, a written agreement that the death penalty is not going to be sought. Maybe under that circumstance Major Hasan and Mr. Galligan would consider discussions with investigators. Otherwise, they can hear it at trial just like the rest of us — might.