This is the 13th day that LTC Lakin and his team have failed to file a petition for a writ of mandamus or prohibition with the Army Court of Criminal Appeals. (I’m reliably informed that no such petition has been filed as of yesterday.)

1. Delay in filing the writ will not necessarily gain delay in the trial.

a. I suspect Judge Lind will deny a continuance request based on the filing of a writ. And certainly any counsel knows that waiting to file a writ until the last minute will not assist garner a favorable continuance ruling.

b. I suspect ACCA will deny a request to delay trial pending resolution of a writ, and might actually deny the writ and a delay both at the same time.

2. In preparing my posting on MAJ Hasan’s request to have his Article 32, UCMJ, hearing closed, I came across Doe v. Naval Special Warfare Command San Diego, . Here is what Doe says that is apropos to LTC Lakin (citations omitted).

The issuance of an extraordinary writ, however, is,

“a drastic remedy that should be used only in truly extraordinary situations.” It is generally disfavored because it disrupts the normal process of orderly appellate review. For that reason, “to justify reversal of a discretionary decision by mandamus [or prohibition], the . . . decision must amount to more than even gross error; it must amount to a . . . usurpation of power.” The petitioner has the burden of showing that he has “a clear and indisputable right” to the extraordinary relief that he has requested. (holding settled limitations on power of appellate courts to review interlocutory orders requires more than simple showing of error; petitioner must prove he had a clear and indisputable right to a particular result or decision that he was not able to obtain from lower court).

Shadwell v. Davenport, 57 M.J. 774, 778 (N.M.Ct.Crim.App. 2002). Since the issuance of such a writ is a drastic remedy and because it disrupts the normal course of appellate review, it should not be invoked in cases where other authorized means of appeal or administrative review exist, Aviz, 36 M.J. at 1028; McKinney, 46 M.J. at 873-74. Accordingly, to justify extraordinary relief, the petitioner bears a heavy burden of demonstrating that he is entitled to issuance of a writ as a clear and indisputable right. Aviz, 36 M.J. at 1028.

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.