Court-Martial Trial Practice Blog
And pigs have wings and can fly.
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.