Petition for Writ of Certiorari — McLaren v. United States

| Magyeme Court, UL |”

FILED .

93-894 DEC -7 1993

No. Ss

In the Supreme Court of the Uniied States

| OcTOBER TERM, 1993

DONALD W. MCLAREN, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Lt. Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

November 1993

QUESTIONS PRESENTED

1. When a suspect makes an ambiguous request for

counsel during a custodial interrogation, must the inter-

rogator cease questioning until the suspect is provided

with counsel?

2. May the Judge Advocate General of an Armed

Force who is not authorized to make appointments under

the Appointments Clause of the Constitution, appoint

commissioned officers to serve as trial and military ap-

pellate judges, on the theory that their appointment as

commissioned officers already satisfies the Appointments

Clause for both their judicial and non-judicial duties?

3. Does the Due Process Clause of the Fifth Amend-

ment require that, in peacetime, military trial and ap-

pellate judges be appointed to their judicial duties for

fixed terms?

(i)

TABLE OF CONTENTS

Page

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PRR ITE iiss sia cehsciasiancisusiseisoceaaeameanaaana l

STATEGEINT OP “THEE CAGE vonicsissssisnscscesssssocesesserncsenes 2

REASONS FOR GRANTING THE WRIT ...................0.. 7

I. THE AMBIGUOUS REQUEST FOR COUNSEL ..... 7

II. THE APPOINTMENTS CLAUSE VIOLATION ... 11

III. THE DUE PROCESS VIOLATION ................0... 12

COTE III etcnsocesncxconisaciacgadbsseaaeannicnaemennaeanan ae 14

APPENDIX A (Opinion of the U.S. Court of Military

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TABLE OF AUTHORITIES

Cases:

Supreme Court:

Buckley v. Valeo, 424 U.S. 1 CIDE) ..ccesereossecsserceses:

Edwards v. Arizona, 451 U.S. 477 (1981)..............

Freytag v. Commissioner, 111 S. Ct. 2631 (1991) ...

Matthews v. Eldridge, 424 U.S. 319 (1976).............

Medina v. California, 112 S. Ct. 2572 _ =

Miranda v. Arizona, 384 U.S. 436 (1981)..............-.

Mueller v. Virginia, 113 S. Ct. 1880 (1993).............

Palmore v. United States, 411 U.S. 389 (1973) .......

Smith v. Illinois, 469 U.S. 91 (1984) ..............25

Tumey v. Ohio, 274 U.S. 510 PEIN iccanadensnsnononses.0e

United States ex rel. Toth v. Quarles, 350 U.S. 11 ......

United States v. Raddatz, 447 U.S. 667 (1980) .....

Federal Cases:

Maglio v. Jago, 580 F.2d 202 (6th | een

Towne v. Dugger, 899 F.2d 1104 (11th Cir. 1990),

cert. denied, 498 U.S. 991 (1990) ..............

United States v. Cherry, 733 F.2d 1124 (Sth Cir.

NOBA) ...ncencencescececcescsccesccssscsrsncencscssssssscsssensenssssncsses

United States v. Fouche, 776 F.2d 1398 (9th Cir.

1GBS) oo... cecenccccscceccecssssssscsssscscseccessncsarsncecsncensscssees

United States v. Golay, 844 F.2d 971 (2nd Cir.

NOBB) ..n.ncncececcscsscsccecsssccssessscencnccersosscesserensnsecssseores

United States v. Porter, 776 F.2d 370 (ist Cir.

PGBS) .ncccccccecceccscceccecsccesscssaccecsansecsesssssscenssssceconees

United States v. Riggs, 537 F.2d 1219 (4th Cir.

State Cases:

iv

TABLE OF AUTHORITIES—Continued

State Cases—Continued:

People v. Alexander, 261 N.W.2d 63 (Mich. 1977),

cert. denied sub nom Michigan v. Borman, 436

oie ee MT deniibiesissssidaibacdieieineabincaitilnniniignisppeaiinaasin

People v. Krueger, 412 N.E.2d 537 (Ill. 1980), cert.

RT | |

People v. Superior Court of Mono County, 542 P.2d

1390 (Cal. 1975), cert. denied, 429 US. 816

Russell v. State, 727 S.W.2d 573 (Tex. Crim. App.

1987) (en banc), cert. denied, 484 U.S. 856

Virginia v. Mueller, 422 S.E.2d 380 (Va. 1992), cert.

denied, 113 S. Ct. 1880 (1993) 0...

Military Cases:

Dettinger v. United States, 7, M.J. 216 (C.M.A.

I sks cclinsidisdechntecniepiabiisanttibaiyed Saibiniieaiiadamaihaneiaia

FTE sichidescntitlscngincannsinaiicsidincinupiapsecianiidiniiadapiin

PIT ilelischidGidnbtiedhsadeacigiailbesuiiteadabiiliietincdnalniidadibiaes

PU diipilla Bit chcneicescibplabensaepeaicpusdeliasiasadeanbuosaudiabaaiinintalins

I diel: psvinnite sliiaantpaseiidatneedtiasksionptewsmiaaniiaadaadactela

RE CERT I Re OE SES OS SED

United States v. Weiss, 36 M.J.224(C.M.A. 1992),

cert. granted, 61 U.S.L.W. 3783 (May 24,

1993)

Vv

TABLE OF AUTHORITIES—Continued

Constitutional Provisions: Page

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Federal Statutory Provisions:

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Bie I etttncecescetissncecessbinpemnnercesonainpasars l

Uniform Code of Military Justice:

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pv im & pik fom | | enn yrenrnCrer 6

Mit GE. WO UA. BI ccistskcitccrinctiansisiancin 6

Regulations:

Manual for Courts-Martial, United States, 1984,

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In the Supreme Court of the United States

OCTOBER TERM, 1993

No.

DONALD W. MCLAREN, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR_A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Donald W. McLaren, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered ir his case

on September 28, 1993.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals, issued on Septernber 28, 1993, is reported at 38 MJ

112 (C.M.A. 1993) (Appendix A). The opinion of the

United States Air Force Court of Military Review, issued

on March 26, 1992, is reported at 34 MJ 926 (A.F.C.M.R.

1992) (Appendix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on September 28, 1993. The jurisdic-

tion of this Court is invoked under 28 USCA § 1259(3)

(Supp. 1992) and 10 USCA § 867(a) (Supp. 1992).

(1)

2

STATEMENT OF THE CASE

On April 15, 1990, Office of Special Investigations

Agent (SA) Sarantis received a complaint that the ap-

pellant was sexually abusing the older of his two step-

daughters. On April 16, SA Sarantis interviewed both

stepdaughters at the base clinic. On 17 April, SA Sarantis

went to the appellant’s on-base quarters intending to ad-

vise Mrs. McLaren of the allegations against her husband

and to ask her to accompany him to the base clinic. Both

the appellant and Mrs. McLaren answered the door. SA

Sarantis told Mrs. McLaren that he needed to speak with

her in reference to her daughter who was at the clinic. SA

Sarantis explained that her daughter was not hurt, but that

a matter had come up and he needed to speak with her at

the clinic. Mrs. McLaren then accompanied SA Sarantis

and SA Bianco to the clinic. The appellant followed in a

second car. When they reached the parking lot of the base

clinic, the appellant asked what was going on. SA Sarantis

responded that he would talk to the appellant later on.

Later that day, SA Sarantis and SA Bianco returned to the

appellant’s quarters and Sarantis indicated that he was

now ready to talk with the appellant. SA Sarantis, SA

Bianco and the appellant then drove to the clinic in an Air

Force Office of Special Investigations (OSI) vehicle and

then went to the conference room where the appellant was

read his rights by SA Sarantis. SA Sarantis advised the ap-

pellant of his right to counsel and then informed him that

he was suspected of rape, carnal knowledge and assault

with a deadly weapon. When SA Sarantis asked the ap-

pellant if he wanted a lawyer, appellant responded, “Not

at this time.” When asked if he wanted to make a state-

ment, the appellant indicated that he wanted to talk.

After some preliminary questions, SA Sarantis steered

the conversation toward the allegations of sexual abuse.

SA Sarantis asked the appellant when he first had sex with

3

his older stepdaughter. The appellant responded, “These

things happen.” SA Sarantis then repeated the question.

At this point, the appellant looked down and said some-

thing to the effect cf “I think I want a lawyer,” or “I think

I need to talk to a lawyer.” SA Sarantis responded, “Well,

yes, these charges seem —are serious.” SA Bianco said,

“Yes, this is a decision that you'll have to make. We can’t

force you to stay here. You need to decide what you want

to do.” SA Sarantis testified that after sitting for a further

period of time in silence, the appellant eventually began

talking again and then orally confessed to the charged of-

fenses. His oral confession was then typed, signed and

sworn to.!

On 9-11 August 1990, the petitioner was tried by general

court-martial at San Vito dei Normanni Air Station, Italy.

Prior to entry of appellant’s conditional pleas of guilty,

the defense moved to suppress the appellant’s 17 April

1990 confession. The defense maintained that these

statements were taken in violation of Article 31, U.C.M.J.

and the Fifth Amendment of the United States Constitu-

ion. The military judge denied the defense motion finding,

that “[a]fter a pause, and apparent reflective delibe-

ration about his verbalized thoughts concerning his

perceived need for a lawyer, [appellant] resumed the inter-

rogation process by proceeding to answer the in-

criminatory question previously posed.” Additionally, he

found that “[t]he agents reasonably construed this resump-

tion by the accused as an election by him not to then act on

his perceived need, if any, for a lawyer.” In accordance

with his conditional pleas, he was found guilty of one

specification of attempted rape, in violation of Article

80, Uniform Code of Military Justice [hereinafter cited as

| This statement of facts is derived in part from the military judge’s

finding of essential facts below on the defense motion to suppress.

4

UCM)], one specification of rape on divers occasions in

violation of Article 120, UCMJ, two specifications of

sodomy on divers occasions, in violation of Article 125,

UCM, and three specifications of indecent acts, in viola-

tion of Article 134, UCMJ. He was sentenced to a

dishonorable discharge, confinement for 35 years,

forfeitures of $424.00 pay per month for 420 months, and

a reduction to the lowest enlisted rank (E-1). The conven-

ing authority approved the sentence as adjudged on 20

November 1990, however, pursuant to a pretrial agree-

ment, he reduced the confinement to 15 years.

On 26 March 1992, the Air Force Court of Military

Review affirmed the findings and sentence as modified

pursuant to the pretrial agreement. United States v.

McLaren, 34 M.J. 926 {A.F.C.M.R. 1992). The Air Force

Court of Military Review found that the appellant’s state-

ment was at most “an equivocal request for counsel.” 34

M.J. at 929, and that the appellant re-initiated the inter-

rogation following a period of silence. On 3 June 1992,

Petitioner then submitted a Petition for Grant of Review

with the United States Court of Military Appeals asserting

two issues of error. On October 2, 1992, that Court

granted appellant’s Petition and ordered the submission of

additional briefs. After hearing oral argument, the Court

of Military Appeals affirmed the lower court’s decision.

(United States v. McLaren, 38 M.J. 112 (CMA 1993) (Ap-

pendix A). The Court of Military Appeals held that, due

to the failure of the OSI agents to conduct a limited in-

quiry to clarify the appellant’s comment, that the

equivocal request for an attorney “was the same as if the

appellant had unequivocally requested a _ lawyer”.

Nonetheless, the Court upheld the conviction on the

grounds that “the appellant’s voluntary reinitiation of the

interview and implied waiver of his previously invoked

right to counsel were sufficient to satisfy Edwards v.

Arizona, 451 U.S. 477 (1981) and Smith v. Illinois, 469

U.S. 91, 95 (1984).

5

With respect to question 1, this petition incorporates

substantially the same brief as was submitted by United

States Navy counsel in Davis v. United States, No 92-1949

(cert. granted on 1 November 1993). Like Davis, this case

is concerned with the consequences of an ambiguous re-

quest for counsel during a custodial interrogation. State,

federal and military courts, are currently applying three

conflicting approaches with regard to whether such a re-

quest invokes the Sth Amendment protections of Miranda

y. Arizona, 384 U.S. 436 (1966).

With respect to Questions 2 and 3, this petition incor-

porates essentially the same brief which was submitted by

United States Navy counsel in Weiss v. United States, No.

92-1482, and by United States Army counsel in Barkley v.

United States, No. 92-1646, and Doucette v. United

States, No. 93-68. Like Weiss, this petition raises two

closely related questions (merged here into Question 2)

which go to the heart of judicial independence for military

trial and appellate judges, almost all of whom are commis-

sioned officers and lawyers on active duty. Unlike judges

appointed under Article I or Article III, military judges

are not appointed by the President with the advice and

consent of the Senate. Nor are they appointed for fixed

terms.

Instead, military judges are selected and appointed by

the Judge Advocate General of their respective service for

such periods of time as the Judge Advocate General deter-

mines. The decision to select, transfer and reassign of-

ficers to and from their judicial duties is absolute and

discretionary. In other words, those judges lack any pro-

tection from being removed and/or reassigned in the event

the Judge Advocate General is not satisfied with their

opinions, rulings or service.

Military trial judges are, for all practical purposes, the

equivalent of United States District Judges and Magistrate

6

Judges who preside over criminal trial in federal district

courts. The drafters of the Uniform Code of Military

Justice wanted military judges to be “real judges” as com-

monly understood in the American legal tradition. United

States v. Graf, 35 MJ 450, 465 (1992). The military trial

judge has far-ranging discretionary powers, including the

power to “rule on all interlocutory questions and all ques-

tions of law raised during the court-martial,” to “[iJnstruct

the members [jury] on questions of law and procedure

which may arise,” to “promulgate and enforce rules_of

court.” and to “exercise contempt power.” UCMJ Art. 48,

10 USC § 848 (1988). If the accused elects a bench trial, a

general court-martial judge has even more discretion than

does a district judge because the court-martial trial judge

is not bound by the Federal sentencing guidelines, See

United States v. Brown, 28 MJ 470, 474 n.3 (CMA 1989);

see generally Manual for Courts-Martial, United States,

1984, Rule for Courts-Martial 1002.

Courts of Military Review exercise all of the traditional

powers of appellate courts including those under the All

Writs Act. See Dettinger v. United States, 7 MJ 216 (CMA

1979). Additionally, these courts exercise an “awesome,

plenary, de novo power of review.” United States v. Cole,

31 MJ 270, 272 (CMA 1990). Thus, a court “[mJay affirm

only such findings of guilty and the sentence ... as it

finds correct in law and fact ... [I]t may weigh the

evidence, judge the credibility of witnesses, and determine

controverted questions of fact.” UCMJ Art. 66(c), 10 USC

§ 866(c)(1988).

Several days before it heard argument in Weiss, the

Court of Military Appeals issued an opinion rejecting the

due process claim. United States v. Graf, 35 MJ 450

(CMA 1992).2 Then, on December 24, 1992, a sharply

2 A petition for writ of certiorari in Graf was filed on December 29,

1992 (No. 92-1102), and it is incorporated by reference. In the interest

7

divided court rejected petitioner Weiss’ Appointments

Clause argument and affirmed the Navy-Marine Corps

Court’s decision. United States v. Weiss, 36 M 224 (CMA

1992), cert. granted, 103 S Ct 2412 (May 24, 1993).

The court did not revisit Graf where it had overruled

Graf’s due process objection to the lack of fixed terms of

office for military judges for two reasons. First, Graf re-

jected the balancing test set forth in Matthews v. Eldridge,

424 US 319 (1976), which had long been used to resolve

Fifth Amendment due process claims. Instead, the court

used the less exacting Fourteenth Amendment due process

standard enunciated in Medina v. California, 112 S Ct

2572 (1992), which involved review of a state criminal con-

viction. Second, Graf treated dicta from United States ex

rel. Toth v. Quarles, 350 US 11 (1955), and Palmore v.

United States, 411 US 389 (1973), as approving the lack of

fixed terms of office, and announced a new rule that

military judges could not be removed in retaliation for

their judicial decisions. Nowhere did the Court of Military

Appeals suggest that military necessity precluded fixed

terms for military judges generally, let alone for those who

sit on the Courts of Military Review in the Washington,

D.C., area, or for courts-martial that are held in

peacetime.

REASONS FOR GRANTING THE WRIT

1. A SPLIT AMONG VARIOUS STATE AND

FEDERAL COURTS EXISTS OVER WHAT

STANDARD A COURT SHOULD USE FOR

DETERMINING THE CONSEQUENCES OF AN

AMBIGUOUS REQUEST FOR COUNSEL

Three conflicting standards are used by state and federal

courts for determining the consequences of an ambiguous

of completeness, this petition will summarize the Graf decision, as

well as the reasons for granting review of the due process issue.

8

request for counsel during a custodial interrogation. Smith

v. Illinois, 469 U.S. 91, 95-96 and n.3 (1984). The court

should resolve this conflict in order to ensure consistency

among the lower courts in their approach to this issue. As

Justice White observed in a recent order denying a petition

for writ of certiorari on this issue:

[It] is apparent that a substantial number of

criminal defendants who are identically situated

in the eyes of the Constitution have received and

will continue to receive dissimilar treatment

[after making an ambiguous request for

counsel.] [B]ecause of the different approaches

taken by the lower courts, I would grant cer-

tiorari.

Mueller v. Virginia, 113 S.Ct. 1880, 1881 (1993)(White J.,

dissenting).

An accused who invokes his right to counsel during a

custodial interrogation may not be subjected to further in-

terrogation until counsel is made available to him, unless

the accused initiates further communication. Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981); See Miranda v.

Arizona, 384 U.S. 436, 474 (1966).* However, this Court

has left unresolved the issue of whether the Edwards

bright-line rule applies when an accused makes an am-

biguous invocation of his right to counsel. Smith v. II-

linois, 469 U.S. at 96. The court should issue a writ of cer-

tiorari in order to resolve this issue.

Some courts have adopted the position that all question-

ing must cease once a suspect mentions the word “at-

torney” or “counsel.” See e.g., Maglio v. Jago, 580 F.2d

3 Justice Blackmun and Justice Souter joined in the dissent.

* “The bright-line rule of Edwards also applies to military interroga-

tions.” United States v. Applewhite, 23 M.J. 196, 198 (C.M.A. 1987).

9

202, 205 (6th Cir. 1978); People v. Alexander, 261 N.W.2d

63 (Mich. 1977), cert. denied sub nom Michigan v. Bor-

man, 426 U.S. 958 (1978); People v. Superior Court of

Mono County, 542 P.2d 1390, 1394-95 (Cal. 1975, cert.

denied, 429 U.S. 816 (1976). These courts have based their

reasoning upon a broad reading of Miranda’s requirement

that all questioning stops once an accused “indicates in any

manner” that he wants to speak with an attorney. Maglio

v. Jago, 580 F.2d at 205.

In stark contrast to those decisions, some courts have

taken a more restrictive approach, holding that there exists

a threshold of clarity which an accused must reach before

he has invoked his right to counsel. See e.g., Virginia v.

Mueller, 422 S.E.2d 380, 387 (Va. 1992), cert. denied, 113

S.Ct. 1880 (1993); People v. Krueger, 412 N.E.2d 537, 540

(Ill. 1980), cert. denied, 451 U.S. 1019 (1981); Dean v.

Commonwealth, 844 S.W.2d 417, 420 (Ky. 1992); Russell

v. State, 727 S.W.2d 573, 575 (Tex. Crim. App., 1987)(en

banc), cert. denied, 484 U.S. 856 (1987). These courts have

attempted to restrict the scope of Edwards to only situa-

tions where an accused has “clearly asserted” his right to

counsel. Virginia v. Mueller, 422 S.E.2d at 387.

Other courts, including the court below, have adopted a

third approach, where all questioning must cease except

for narrow questions to clarify the earlier ambiguous re-

quest. See, e.g., United States v. Porter, 776 F.2d 370 (ist

Cir. 1985); United States v. Gotay, 844 F.2d 971, 975 (2nd

Cir. 1988); United States v. Riggs, 537 F.2d 1219, 1222

(4th Cir. 1976); United States v. Cherry, 733 F.2d 1124,

1130-31 (Sth Cir. 1984); United States v. Fouche, 776 F.2d

1398, 1405 (9th Cir. 1985); Towne v. Dugger, 899 F.2d

1104 (11th Cir. 1990), cert. denied, 498 U.S. 991 (1990).

These courts have placed an affirmative duty on law en-

forcement personnel to actively ascertain whether an in-

10

dividual has, in fact, invoked his right to counsel. By ap-

plying this standard, the United States Court of Military

Appeals has joined the division among the courts.

In applying the third approach, the court below failed to

apply the correct standard for determining the conse-

quences of an ambiguous request for counsel. The ap-

pellate court below should have followed the first ap-

proach which would have required the interrogators to

cease all questioning once the petitioner mentioned the

word “attorney.” This approach allows a qualified at-

torney to clarify an accused’s request, and also protects an

accused from being badgered by police officers to answer

further questions when he wants to invoke his fundamen-

tal right to counsel.

Il. THE METHOD OF APPOINTING MILITARY

OFFICERS TO DUTY AS TRIAL AND AP-

PELLATE JUDGES VIOLATES THE AP-

POINTMENTS CLAUSE OF THE CONSTITU-

TION AND THE LACK OF ANY FIXED TERM

FOR THOSE JUDICIAL OFFICES VIOLATES

THE DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT.

This petition, like United States v. Weiss, seeks to

establish minimum standards for the appointment of

military judges and their retention in office for fixed

terms. It does not seek to have the Uniform Code of

Military Justice or the military justice system mirror that

of Article III courts. Rather, it seeks to ensure that the

separation of powers requirements embodied in the Ap-

pointments Clause, and the notions of fundamental

fairness embodied in the Due Process Clause of the Fifth

Amendment, are available to those who are tried by

courts-martial. Taken alone, either the Appointments

Clause or the Due Process violations would seriously

11

undermine the fairness of the military justice system, but

occurring together they call into question whether anyone

in the armed forces can receive the minimal level of

judicial independence that every justice system requires.

A. THE APPOINTMENTS CLAUSE VIOLATION

The Appointments Clause precludes Congress from

placing the power to appoint inferior officers in anyone

other than the President alone, the Court of Law, or the

Heads of Departments. US Const. Art. moa, Ge. &

Freytag v. Commissioner, 111 S Ct 2631 (1991). There can

be little doubt that military judges, who exercise extraor-

dinary authority and discretion, are Officers of the United

States and are subject to the Appointments Clause. See

Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). No

judge of the Court of Military Appeals disagreed with that

proposition except Judge Crawford and her position was

specifically disavowed by the Department of Justice.

There is considerable force to the argument that military

appellate judges are “superior” or “principal” officers, in

which case the President must appoint them with the ad-

vice and consent of the Senate. But in any event, both

military trial and appellate judges are at least inferior of-

ficers, and so they must be appointed either by the Presi-

dent, the Head of a Department, or by a Court of Law.

No court has held that military judges are appointed to

their judicial offices by any of the authorities listed in the

Appointments Clause; the only question is whether their

appointment as military judges, after they have been duly

appointed as military officers must be made by one of the

authorities set forth in that clause.

In this case it is not simply that the Judge Advocates

General, who appoint military judges, are not listed in the

Appointments Clause, but they are the supervisors of all

12

military lawyers who serve in military courtrooms, in-

cluding all of those who prosecute criminal cases on behalf

of the United States. In addition, the Judge Advocates

General, or the Assistant Judge Advocates General, write

the annual fitness reports of the members of each service’s

Court of Military Review, which are then used to decide

the appellate judges’ promotions, future duty assignments,

and susceptibility to involuntary early retirement. Indeed,

the due process implications of this particular appoint-

ment arrangement raise independent concerns that strong-

ly reinforce the Appointment Clause objections.

B. THE DUE PROCESS VIOLATION

The reasons the Court should grant review on this ques-

tion are set out in the previously-filed Graf petition and

are only summarized below. But first, it is worth noting

that, although the two issues presented in this question

arise under different constitutional provisions, the defects

involve common concerns of accountability and fun-

damental fairness to an accused. Noncompliance with

each of the provisions is magnified by the lack of com-

pliance with the other, such that there is a synergistic im-

pact on the accused’s rights. To further compound the

problem, the Judge Advocate General can both appoint

and remove military judges, yet he is also responsible for

supervising the efficient working of the military justice

system, including its prosecutors.

The lower court’s application of Medina’s Fourteenth

Amendment due process analysis to a federal Fifth

Amendment due process claim is ample reason to hear the

case. Indeed, in Medina this Court left open the correct-

ness of one of its prior decisions— United States v.

Raddatz, 447 US 667, 677 (1980)—which had applied

Matthews v. Eldridge to a due process challenge to a

13

federal criminal conviction. Petitioner believes that

respect for state legislative judgments and concerns of

federalism, which loomed so large in Medina, have no

place where federal due process rights are at issue, but the

uncertainty created by Medina underscores ihe need for

this Court to settle an issue that only it can resolve.

Certainly, in time of war or other serious exigency,

military necessity may require some adjustments regarding

the tenure of trial judges, although not for the appellate

judges who comprise the four Courts of Military Review.

Moreover, neither the government nor the Court of Mil-

itary Appeals has sought to justify the lack of any fixed

term of office on grounds of military necessity. Instead,

the Court of Military Appeals relied on other claimed pro-

tections against improper retaliation against military

judges for unpopular decisions — some of which it first an-

nounced in Graf—although none of them can be invoked

by an accused, even if they were actually, as opposed to

theoretically, available to the judges themselves. But even

if those protections served to prevent naked retaliation,

they cannot possibly guard against the more subtle and

virtually undetectable chilling influences of adverse or

“faint praise” fitness reports that can have significant im-

pacts on promotions, future assignments, and suscept-

ibility to involuntary early retirement for all military

judges.

The Court below has failed to justify this massive excep-

tion to the generally accepted principle of American

jurisprudence that judicial independence for those who

preside at criminal trials and hear criminal appeals is an

absolute minimum protection for an accused, as reflected

in such due process cases as Tumey v. Ohio, 274 US 510

(1927), and in the nearly universal fact that state judges

serve for fixed terms of office.

14

CONCLUSION

The questions presented are genuinely important and af-

fect not only petitioner, but the right of millions of

Americans serving in the armed forces. Petitioner asks this

Court to resolve the issue of what standard a court should

use for determining the consequences of an ambiguous re-

quest for counsel during a custodial interrogation. In do-

ing so, the court will resolve the split among the lower

courts on this important question of Constitutional law

and ensure that all defendants are treated equally. In addi-

tion, the cumulative impact of the constitutional appoint-

ments and due process errors in petitioners case warrants

this Court’s attention, consideration and action. For all

the reasons stated, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

JAY LINDSEY COHEN

Lt. Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

November 1993

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 68,117

CMR No. 28996

UNITED STATES, APPELLEE

Vv.

DONALD W. MCLAREN, STAFF SERGEANT

U.S. Arr FORCE, APPELLANT

Argued May 10, 1993

Decided Sept. 28, 1993

38 M.J. 112

For Appellant: Captain David D. Jividen (argued); Col-

onel Terry J. Woodhouse and Major Mary C. Yastishock

(on brief).

For Appellee: Captain Carlos L. McDade (argued); Col-

onel Richard L. Purdon, Lieutenant Colonel Jeffery T.

Infelise, Major Paul H. Blackwell, Jr. (on brief).

Military Judge: J. Jeremiah Mahoney

Opinion of the Court

GIERKE, Judge:

Pursuant to his conditional pleas of guilty, appellant

was convicted of attempted rape, rape, sodomy (2

specifications), and committing indecent acts with his

(la)

2a

stepdaughters (3 specifications), in violation of Articles

80, 120, 125, and 134, Uniform Code of Military Justice,

10 USC §§ 880, 920, 925, and 934, respectively. The

general couri-martial, composed of officer and enlisted

members, sentenced appellant to a dishonorable

discharge, 35 years’ confinement, forfeiture of $424.00

pay per month for 420 months and reduction to E-1. The

convening authority reduced the confinement to 15 years

pursuant to a pretrial agreement, but otherwise approved

the sentence. The Court of Military Review affirmed the

findings and the approved sentence. 34 MJ 926 (1992)

This Court granted review of the following Issues:

WHETHER APPELLANT'S FIFTH AMEND-

MENT RIGHTS WERE VIOLATED WHEN

THE MILITARY JUDGE FAILED TO SUP-

PRESS APPELLANT’S STATEMENTS TO

THE AFOSI [AIR FORCE OFFICE OF

SPECIAL INVESTIGATIONS] AFTER HE

STATED “I THINK I WANT A LAWYER” OR

WORDS TO THIS EFFECT AND THE AFOSI

FAILED TO CEASE THEIR QUESTIONING

OR CLARIFY APPELLANT’S REQUEST

FOR COUNSEL.

WHETHER THE MILITARY JUDGE ER-

RED, TO THE SUBSTANTIAL DETRIMENT

OF APPELLANT, WHEN HE DENIED THE

DEFENSE CHALLENGE TO A COURT

MEMBER, CAPTAIN JAMES, WHO RE-

FUSED TO CONSIDER THE PUNISHMENT

OPTION OF “NO PUNISHMENT.”

3a

1. Admissibility of Confession

A. Factual Background

On April 15, 1990, OSI Special Agent (SA) Sarantis

received a complaint that appellant was sexually abusing

the older of his two stepdaughters. On April 16, SA Saran-

tis interviewed both stepdaughters at the base clinic. On

April 17, SA Sarantis went to appellant’s on-base quarters,

intending to advise Mrs. McLaren of the allegations and

ask her to accompany him to the base clinic. Both ap-

pellant and Mrs. McLaren answered the door. SA Sarantis

told Mrs. McLaren that he “needed to speak with her in

reference to her daughter [A] who was at the clinic. [He]

explained that [A] was not hurt but that an incident had

come up and [he] needed to speak to her and [A] at the

clinic.” Mrs. McLaren accompanied SA Sarantis and SA

Bianco to the clinic. Appellant followed in a separate car.

In the parking lot of the base clinic, appellant “wanted to

know what was going on.” SA Sarantis told him, “No,

we'll talk to you later.” Later that same day SA Sarantis

and SA Bianco returned to appellant’s quarters and Saran-

tis said, “Okay, we can have that conversation now. Let’s

go over to the clinic.”

Appellant accompanied SA Sarantis and SA Bianco to

the clinic in an OSI vehicle, and they went to a conference

room inside the clinic. SA Sarantis advised appellant of his

rights including his right to counsel and informed him that

he was suspected of rape, carnal knowledge, and assault

with a deadly weapon. When SA Sarantis asked appellant

if he wanted a lawyer, appellant responded, “Not at this

time.” When asked if he wanted to make a statement, ap-

pellant indicated that he wanted to talk.

After a few introductory questions, SA Sarantis steered

the conversation toward the allegations of sexual abuse.

SA Sarantis testified, “As I was coming right up to it, he

4a

began to well up inside. He came up and his eyes were fill-

ing full of water. He just kind of—from the outside it

looked as if he was about to burst, just as we were there.”

SA Sarantis asked appellant when he “first had sex with”

his older stepdaughter. Appellant replied, “These things

happen.” Agent Sarantis then repeated the question. Ap-

pellant then looked down and said something to the effect,

“I think I want a lawyer,” or “I think I need to talk to a

lawyer.” SA Sarantis responded, “Well, yes, these charges

seem —are serious.” SA Bianco said, “Yes, this is a deci-

sion that you’ll have to make. We can’t force you to stay

here. You need to decide what you want to do.”

SA Sarantis testified that after a brief pause, without

further questions or comments from the two special

agents, appellant “began talking again.” SA Bianco

testified that when appellant began talking again, he

responded to SA Sarantis’ most recent question, saying,

“It just happened” and shaking his head, “Yes.” The inter-

view then resumed, and appellant orally confessed. His

oral confession was then typed, signed, and sworn to.

Appellant testified on the motion to suppress as follows:

It was after he asked me— Mister Sarantis asked

me about when was the first time I had sex with

[A] and I replied, “Whoa, I want a lawyer,” and

he asked my why and I told him because he was

accusing me of having sex with [A]. And chen

when he—he said that “We were not accusing

you. We knew it was true. We have statements.

We need the details.” I looked over at Mister

Bianco and he was scribbling out.

Appellant testified further that he “sat there for a few

minutes and Mister Sarantis asked me again about —‘We

need to know when was the first time you had sex with

[A].’ ”

Sa

The military judge denied appellant’s motion to sup-

press his confession because “la]fter a pause, and apparent

reflective deliberation about his verbalized thoughts con-

cerning his perceived need for a lawyer, [appellant] re-

sumed the interrogation process by proceeding to answer

- the incriminatory question previously posed.” Additional-

ly, he found that “[t]he agents reasonably construed this

resumption by the accused as an election by him not to

then act on his perceived need, if any, for a lawyer.”

The Court of Military Review found that appellant’s

statement, “I think I want a lawyer,” or “I think I need to

talk to a lawyer” was at most “an equivocal request for

counsel.” 34 MJ 926, 929 (1992). That court further held

that appellant re-initiated the interrogation following a

period of silence after SA Bianco told him it was his deci-

sion as to how to proceed. The court below concluded its

analysis and holding as follows:

In sum, after [appellant] uttered his equivocal

reference to counsel, the investigators ceased

their interrogation. Their subsequent comments

were neutral and provided [appellant] the oppor-

tunity to clarify his vague statement. [Appellant]

reinitiated the interrogation by resuming the con-

versation, even though he did not explicitly

clarify his earlier reference to counsel. Focusing

on this narrow factual scenario, we hold that

where a suspect voluntarily reinitiates discussions

related to the investigations, he effectively

clarifies the earlier ambiguous request for

counsel. At that point, investigators have no fur-

ther obligation to pursue the suspect’s indecision

and may resume the interview. [Appellant’s] con-

fession was otherwise voluntary and properly ad-

mitted in evidence against him. His Fifth

Amendment rights were not violated.

34 MJ 931-32.

6a

B. Discussion

Appellant argues that: (1) his request for counsel (“I

think I want a lawyer”) was not equivocal; (2) assuming

arguendo that his request for counsel was equivocal, the

investigators should have considered the right to counsel

invoked and ended the interrogation rather than seek

clarification of appellant’s equivocal request for counsel;

and (3) assuming arguendo that the investigators should

have clarified appellant’s equivocal request for counsel,

they failed to do so in this case.

The Government argues that appellant’s request for

counsel was equivocal. According to the Government, the

mere mention of the term “counsel” or “attorney” is not

enough to require termination of a suspect’s questioning.

See United States v. Whitehead, 26 MJ 613, 617 (ACMR

1988) (“Maybe I should get a lawyer” not unequivocal re-

quest for lawyer); United States v. Brown, 27 MJ 614 (AC-

MR 1988), aff'd, 28 MJ 232 (CMA 1989) (accused’s re-

quest to speak to prosecuting attorney in private prior to

interview not an unequivocal request for counsel) cert.

denied, 492 U.S. 907 (1989); United States v. Fouche, 833

F. 2d 1284, 1286-87 (9th Cir. 1987) (I “might want to talk

to a lawyer” not an unequivocal request for lawyer), cert.

denied, 486 U.S. 1017 (1988). According to the Govern-

ment, appellant confessed after making a silent reflection

on his ambiguous request for counsel. The Government

argues that appellant’s subsequent unsolicited discussion

of the allegations amounted to a voluntary re-initiation of

the interview and waiver of his right to counsel. We hold

that the military judge did not abuse his discretion by ad-

mitting appellant’s confession.

An accused in custody, “having expressed his desire to

deal with the police only through counsel, is not subject to

further interrogation by the authorities until counsel has

7a

been made available to him,” unless he validly waives his

earlier request for the assistance of counsel. Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981). “[WJhen counsel is

requested, interrogation must cease, and officials may not

reinitiate interrogation without counsel present, whether

or not the accused has consulted with his attorney.” Min-

nick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 491

(1990). Once an accused has invoked his right to counsel,

the police may not conduct “further interrogation” about

the offenses “until counsel has been made available to

him, unless the accused himself initiates further com-

munications, exchanges, or conversations with the police.”

Edwards v. Arizona, 451 U.S. at 484-85.

While the words, “I think,” used by appellant in this

case, could render a request for counsel equivocal, they

are not in themselves dispositive. The language of ap-

pellant’s comment must be evaluated in the context of the

circumstances in which it was spoken. Appellant’s com-

ment was in response to the first accusatory question in

this interview, indicating that the question caused him to

reconsider his earlier waiver of counsel (when he respond-

ed, “Not at this time” to the questions regarding counsel).

Nevertheless, even if we assume without deciding that

appellant’s request for counsel was equivocal, the OSI

agents had only two choices: (1) terminate the interview or

(2) conduct limited questioning to clarify appellant’s com-

ment. United States v. Davis, 36 MJ 337, 341 (CMA

1993). Because they did neither, the situation was the same

as if appellant had unequivocally requested a lawyer. Ac-

cordingly, appellant’s responses to further questioning

about the offenses were admissible only if “he (a) initiated

further discussion with the police, and (b) knowingly and

intelligently waived the right he had invoked.” Smith v. Il-

linois, 469 U.S. 91, 95 (1984). The court below held that

appellant voluntarily initiated further conversation with

8a

the OSI agents, effectively clarifying and waiving his

earlier request for counsel. 34 MJ at 931.

The Government had the burden of establishing that ap-

pellant voluntarily resumed the interrogation once he in-

voked his right to counsel, even if that invocation was

equivocal. See Lego v. Twomey, 404 U.S. 477, 489 (1972)

(prosecution has burden of establishing admissibility of

confession by preponderance of evidence); Miranda v.

Arizona, 384 U.S. 436, 475 (1966) (“If the interrogation

continues without the presence of an attorney and a state-

ment is taken, a heavy burden rests on the government to

demonstrate that the defendant knowingly and intelligent-

ly waived his privilege against self-incrimination and his

right to retained of appointed counsel.”).

After appellant mentioned a lawyer, the agents told him

they could not force him to stay in the interview room, and

they told him he needed to decide what he wanted to do.

They asked no further questions. After a brief pause, ap-

pellant answered the question SA Sarantis had asked

before appellant mentioned a lawyer.

The military judge found that appellant voluntarily

reinitiated the conversation and waived his previously in-

voked right to counsel. He initiated the conversation by

talking after the agents told him that they could not force

him to stay and that he needed to make a decision; he

waived his previously invoked right to counsel by answer-

ing the previously asked question which had preceded his

mention of a lawyer. We are satisfied that appellant’s

voluntary reinitiation of the interview and implied waiver

of his previously invoked right to counsel were sufficient

to satisfy Miranda y. Arizona and Smith v. Illinois, both

supra. Accordingly, we agree with the Court of Military

Review that the military judge did not abuse his discretion

in admitting the challenged statement.

9a

Il. Challenge for Cause.

A. Factual Background

When trial moved on to the challenge procedures,

defense counsel focused on the court members’ attitudes

toward a sentence of “no punishment.” The maximun

period of confinement for the offenses to which appellant

had pleaded guilty was life imprisonment. Appellant had

negotiated a pretrial agreement limiting confinement to 15

years.

Prior to voir dire of the court members, the military

judge gave extensive preliminary instructions, including

the following:

The essential question concerning your qualifica-

tion as a court member is simply whether or not

you can render an impartial decision based solely

upon the evidence and law presented to you in

this court. You should have no predisposition

toward one side or the other, nor should you

have a predisposition as to the kind or amount of

punishment which might be appropriate for the

offenses of which the accused has been con-

victed.

In his voir dire of the members, the military judge

asked, “Will you avoid forming an opinion as to the kind

or amount of punishment which may be appropriate until

all the evidence and law has been presented to you?” All

members responded in the “affirmative.” He then asked,

“And will each agree to follow the law as I give it to you?”

Again, all members responded in the “affirmative.”

During his general voir dire, defense counsel questioned

the members as follows:

Would you all agree with me that what you have

in front of you and what Sergeant McLaren has

10a

pled guilty to and been found guilty of are some

of the most serious offenses known to the law?

An affirmative response from all members.

The reason why I ask you that is that at this point

in the trial, according to the judge’s instructions,

you are not to have any particular sentence in

mind, either lenient or very severe, or any kind of

a sentence. My next question is a very serious

question. It’s not facetious in any way. None of

my questions will be. But at one point in the trial,

the judge is going to tell you that no punishment

is an option. With regard to whether that is a

reasonable or a ridiculous idea at this point in

time, without having any presentation of evi-

dence, is there anyone on this jury that can

honestly and seriously consider no punishment

just by what you’ve read in front of you?

Defense counsel individually polled the members, and all

but two of the eleven, including Captain James, re-

sponded, “No.” Defense counsel then asked:

Okay. Now, for those of you who have said no,

let me explain a little bit further now. The judge

will give you instructions that you have to con-

sider all lawful sentences and even no punish-

ment. And he may further explain to you that no

punishment really is a possibility here. Without

seeing any evidence—now, I’m not saying that

once you saw evidence you might change your

mind. You might say—you know, who knows

what might come before you. Would that change

any of the people who said no to possibly there is

a real possibility they just might adjudge or vote

for no punishment? Would anybody change their

lla

mind just from what you have in front of you at

this point?

Defense counseled indicated that all members responded

in the negative to this question.

During individual voir dire, defense counsel questioned

Captain James further as follows:

Q. Very briefly, Captain James, I just want to

get something clear on the response to the ques-

tion about no punishment. Do you remember

when I was asking you about that?

A. Yes, Sir.

Q. Now, even though that with what you've got

in front of you might not seem to be a very

reasonable idea, without hearing anything, could

you consider it in the deliberation room or would

that not be possible at all?

+4. Based on what you gentlemen have already

told me today as far as the individual admitting

that he did do what’s in front of me, no, I could

not consider no punishment in this case.

Q. Could you consider something other than

no punishment that may not be very severe?

A. I'd have to review the facts in this.

Q. Okay, based on review of the facts, based

on what evidence you hear, medical and other-

wise?

A. That’s right.

* * *

12a

(Question by the military judge:)

Q. As I gathered, you have no problem in

believing that you can decide an appropriate

sentence, in other words, discuss and deliberate

with the other members and vote on a[n] ap-

propriate sentence, based upon the facts

presented about the accused and the offenses and

the law as I give it to you in this court?

A. That’s correct, Sir, I do.

MJ: Okay. Any other questions?

DC: Yes, Sir, there is.

(Questions by the defense counsel:)

Q. Now, Captain James, you certainly are ex-

pected to take your knowledge of the world and

your own moral convictions and so forth into the

deliberation room. You don’t go in there in a

vacuum. But do you have some particular moral

conviction that would inflame your passions that

would lead you to a severe sentence that you may

want to tell us before we continue?

A. No, only that what you have written in front

of me, I do not consider as appropriate or right.

Q. Neither do I, Sir, but that’s —

A. That’s where I’m coming from.

DC: That’s it. Okay, thank you.

Neither the military judge nor either counsel inquired fur-

ther.

During his sentencing instructions, the military judge in-

structed the members, “There is no minimum punishment

Te I

13a

which must be imposed.” The sentence worksheet included

a sentence: “To no punishment.”

Defense counsel did not object or request further in-

structions on the option of “no punishment.” During his

closing argument on sentence, defense counsel conceded

that a sentence to no punishment in this case would be

“ridiculous.”

B. Discussion

Appellant contends that the military judge committed

prejudicial error by denying a challenge for cause against

Captain James. We hold that the military judge did not

abuse his discretion.

RCM 912(f)(1)(N), Manual for Courts-Martial, United

States, 1984, provides that a member will be excused for

cause when the member “[s]hould not sit as a member in

the interest of having the court-martial free from substan-

tial doubt as to legality, fairness, and impartiality.” This

ground for challenge is intended to cover situations where

the member “has an inelastic opinion concerning an ap-

propriate sentence for the offenses charged.” RCM

912(f/)(1)(N), Discussion. RCM 912(f)(3) provides, “The

burden of establishing that grounds for a challenge exist is

upon the party making the challenge.”

We have long recognized that “challenges for cause are

to be liberally granted.” United States v. Glenn, 25 MJ

278, 279 (CMA 1987). At the same time, we have recog-

nized the military judge’s superior position in evaluating

the demeanor of court members and, therefore, we have

granted great deference on appeal to, and will not reverse,

a ruling on a challenge for cause absent a clear abuse of

discretion. United States v. Deain, 5 USCMA 44, 17 CMR

44 (1954) We recently set out the standards regarding

challenges for military judges and appellate courts in

l4a

United States v. White, 36 MJ 284, 287 (CMA 1993) as

follows: “[Mlilitary judges must follow the liberal-grant

mandate in ruling on challenges for cause, but we will not

overturn the military judge’s determination not to grant a

challenge except for a clear abuse of discretion in applying

the liberal-grant mandate.”

In evaluating challenges for cause based on claims of an

inelastic attitude, we have held that an unfavorable in-

clination toward an offense is not automatically disquali-

fying. See United States v. Bannwarth, 36 MJ 265, 267-68

(CMA 1993) (no place in Air Force for drug users); United

States v. Reynolds, 23 MJ 292 (CMA 1987) (strong

distaste for barracks larceny); United States v. Cosgrove,

1 MJ 199 (CMA 1975). “[T]he test is whether the member’s

attitude is of such a nature that he will not yield to the

evidence presented and the judge’s instructions.” United

States v. McGowan, 7 MJ 205, 206 (CMA 1979).

We have also observed that a member’s responses to

“artful, sometimes ambiguous” questioning do not

necessarily require that a challenge for cause be granted.

United States v. Tippit, 9 MJ 106, 108 (CMA 1980). This

case represents the epitome of artful questioning and inac-

curate response. Defense counsel first obtained the agree-

ment of the entire panel that his client had pleaded guilty

to “some of the most serious offenses known to the law.”

Next he suggested that a sentence of no punishment might

be an unreasonable idea. Finally, he closed the trap by

asking Captain James if, without hearing any evidence, he

could accept defense counsel’s admittedly unreasonable

suggestion and vote for no punishment.

The military judge clarified Captain James’ response by

asking Captain James if he could adjudge an “appropriate

sentence, based upon the fact presented about the accused

and the offenses and the law as I give it to you in this

court.” Captain James unequivocally responded that he

——————

lSa

could. What defense counsel’s artful questioning estab-

lished was that Captain James could not comprehend how

appellant’s offenses, in an evidentiary vacuum, could war-

rant no punishment. What the military judge’s questioning

established was that Captain James would follow the law.

Although the military judge could have done more to

clarify Captain James’ views, he did establish that Captain

James’ difficulty with imagining how such an apparently

serious offense could warrant no punishment would yield

to the evidence and the law. Accordingly, we are satisfied

that the military judge did not abuse his discretion by

denying the challenge for cause.*

Ill. Decision

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges Cox and CRAWFORD concur.

* I would have substantial misgivings about holding that a military

judge abused his discretion by refusing to excuse a court member who

could not in good conscience consider a sentence to no punishment in

a case where all parties agree that a sentence to no punishment would

have been well outside the range of reasonable and even remotely

probable sentences.

l6a

SULLIVAN, Chief Judge (concurring in part and in the

result):

I concur with Judge Gierke’s excellent opinion on Issue

II. On Issue I, I concur in the result reached but not the

path to it, In my view, and in the view of the Court of

Military Review, United States v. McLaren, 34 MJ 926,

929 (AFCMR 1992), appellant’s statement, “I think I want

a lawyer,” was “an equivocal request for counsel.” Once

appellant made that statement, the Office of Special In-

vestigations (OSI) agents ceased all substantive question-

ing and limited their comments to clarifying appellant’s

ambiguous statement. __ MJ at (5). The record also sup-

ports the conclusion that appellant clarified his intentions

regarding a request for counsel. See United States v.

March, 999 F.2d 456 (10th Cir. July 9, 1993). Without any

pressure from the OSI agents and without further ques-

tioning regarding the suspected offenses, appellant con-

tinued to answer the previously asked question. I agree

with the court in March that “[t]his is the clarification re-

quired in the face of an ambiguous request for

counsel... . ” 999 F.2d at __.

17a

Wiss, Judge (concurring in part and dissenting in part):

I agree with the majority’s treatment of the second issue.

I agree, as well, with its analysis of the first issue that leads

it to conclude that appellant’s statement in issue was at

least an equivocal request for a lawyer (see Cannady v.

Dugger, 931 F.2d 752, 755 (11th Cir. 1991) (“ ‘I think I

should call my lawyer’ was an unequivocal request for

counsel” (emphasis added)); see generally Connecticut v.

Barrett, 479 U.S. 523, 529 (1987) (“broad, rather than a

narrow, interpretation [should be given] to a defendant’s

request for counsel’”)); that the agent’s only choices at that

point were to either “(1) terminate the interview or (2) con-

duct limited questioning to clarify appellant’s comment”

(United States v. Davis, 36 MJ 337, 341 (CMA 1993)); that

what the agents in fact did was “neither”;* and that, ac-

* The Chief Judge is of the view that appellant’s statement was an

equivocal or ambiguous request for an attorney and that the agents’

statements and conduct were no more than a permissible effort to

clarify the equivocation, citing United States v. March, 999 F.2d 456

(10th Cir. 1993). March is easily distinguishable in both respects.

The suspect’s relevant response there was, “Do you think I need an

attorney?” Such a question obviously indicates that the suspect is com-

templating the exercise of the right, as the Court of Appeals recog-

nized; but it does not fairly imply that the suspect has decided to exer-

cise the right. I do not believe the same can be said of appellant’s

response: “J think I want an lawyer,” or “I think I need to talk to a

lawyer.” The court in Cannady v. Dugger, 931 F.2d 752, 755 (11th

Cir. 1991), held that a virtually identical response “was an unequivocal

request for counsel” (emphasis added), and I think there is much to be

said for that conclusion.

Second, the agents’ response in March—where the suspect had

asked them whether he needed a lawyer — certainly was no more than a

fair effort to clarify whether he had made a decision and, if so, what it

was. I believe that an agent’s comments to the effect that the suspect

will have to decide whether he wants a lawyer is a fair effort to clarify

a question posed by the suspect like the one in March; it is more than

18a

cordingly, “the situation was the same as if appellant had

unequivocally requested a lawyer.” __ MJ at (14). From

that point on, however, I disagree with the reasoning

reflected in the majority opinion, so I dissent from the

resolution of that issue.

Succinctly, I believe that what the agents said and did

following appellant’s statement about a lawyer was intend-

ed as, and was in fact, an encouragement to keep talking;

as such, appellant’s ultimate acquiescence in continuing

the interview cannot lawfully be viewed as being an initia-

tion by him, so the continued questioning was unlawful.

See Minnick v. Mississippi, 498 U.S. 146 (1990); Edwards

v. Arizona, 451 U.S. 477, 484-85 (1981).

In order to more sharply focus the basis for this judg-

ment, I pose the following hypothetical that parallels the

fact pattern of this case except that the invocation of the

right to a lawyer is absolutely unequivocal:

that when the suspect’s response is an affirmative statement showing

at least a contemplation of the need for a lawyer, like the one in this

case.

These agents had appellant on the ropes. He was distraught; he ob-

viously felt overwhelming guilt; and he was on the virtual brink of an

emotional outpouring of grief — and evidence. Suddenly, there was an

expression of a wish for a lawyer. Faced with the desire to do

everything legally possible to keep appellant talking, I believe that un-

fortunately they crossed the line of the legally possible: Instead of

honoring what might well be viewed as an unequivocal counsel request

or instead of limiting themselves to the ministerial clarification of

whether appellant was equivocally expressing a wish for an attorney (a

mechanical process), they proceeded with words and deeds that were

designed to induce appellant to reconsider his rights’ invocation (a

cognitive process). See generally United States v. March, 999 F.2d at

__ (“These clarifying questions must be purely ministerial, not adver-

sarial, and cannot be designed to influence the subject not to invoke

his rights.”).

19a

Interrogator: We have just read you your

rights, and now we want to talk to you about our

suspicions that you have raped and otherwise

sexually molested your stepdaughters. Do you

want a lawyer?

Suspect: Not at this time.

Interrogator: All right. Let’s begin by my ask-

ing you . . . [follows is a series of relatively in-

nocuous questions and answers that lead into the

allegations of sexual abuse of his stepdaughers].

Interrogator: When did you first have sex with

your older daughter?

Suspect: [Visibly emotionally distraught] These

things happen.

Interrogator: I’d like to know, when did you

first have sex with your older daughter?

Suspect: I want a lawyer before I go any fur-

ther with this questioning —I want a lawyer.

Interrogator: Well, yes, these charges

seem — are serious.

Interrogator #2: Yes, this is a decision you’ll

have to make. We can’t force you to stay here.

You need to decide what you want to do.

[Brief pause]

Suspect: It just happened.

[Etc.]

In this context of an unquestionably unequivocal asser-

tion of his right to the presence of a lawyer, I believe it is

clear that the comments and the pause by the agents at a

minimum are an effort to provide the suspect an oppor-

20a

sw hla eee ke

tunity to reconsider the invocation and, more realistically,

are a psychological encouragement to do so and to con-

tinue talking. That is illegal, Edwards v. Arizona, supra.

Such a tactic is likewise illegal in the context of the case at

bar, where “the situation was the same as if appellant had

unequivocally requested a lawyer.” __ MJ at (14). See

generally Colorado v. Connelly, 479 U.S. 157, 168

(1986)(prosecution has burden to prove by preponderance

of the evidence that defendant waived rights).

ee ee ee ee ee ee ee

2la

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 28996

UNITED STATES

Vv.

STAFF SERGEANT DONALD W. MCLAREN, FR547-35-0428

UNITED STATES AIR FORCE

26 March 1992

34 M.J. 926

Sentence adjudged 11 August 1990 by GCM con-

vened at San Vito dei Normanni Air Station, Ita-

ly. Military Judge: J. Jeremiah Mahoney.

Approved sentence: Dishonorable discharge,

confinement for 15 years, forfeiture of $424 pay

per month for 420 months, and reduction to E-1.

Appellate Counsel for the Appellant: Captain

David D. Jividen (argued), Colonel Jeffrey R.

Owens, Major John V. Sullivan, and oer Paul

M. Dankovich.

Appellate Counsel for the United States: Ma-

jor Ann M. Mittermeyer (argued), Colonel

William R. Dugan, Jr., Lieutenant Colonel

Brenda J. Hollis, Major Paul H. Blackwell, Jr.,

and Captain Carlos L. McDade.

22a

Before

LEONARD, RIVES, and JAMES

Appellate Military Judges

OPINION OF THE COURT

RIVES, Judge:

What must investigators do when a suspect who has

waived his rights says, “I think I want a lawyer”? Ap-

pellant contends his Constitutional rights were violated

when his interview resumed without a clarification of the

statement. We disagree with that and his other assertions

of error and affirm.

After the motion to suppress his confession was denied,

the appellant, Staff Sergeant Donald W. McLaren,

entered a conditional guilty plea! to raping and attempting

to rape one of his stepdaughters, and committing sodomy

and a variety of indecent acts with both of his step-

daughters. See R.C.M. 910(a)(2); United States v. Forbes,

19 M.J. 953 (A.F.C.M.R. 1985). He was sentenced by of-

ficer and enlisted members to a dishonorable discharge,

' We cannot determine whether the conditional plea was properly

accepted in this case. The record fails to disclose whether the ruling on

the suppression motion was case-dispositive; the victims might will

have testified, and the confession might have been superfluous

evidence. If so, the conditional plea simply preserved for appeal an

issue which was moot and yet which carried in it seeds that could have

grown into an appellate reversal. We criticized this practice in United

States v. Phillips, 32 M.J. 955 (A.F.C.M.R. 1991), noting that one

solution on appeal in such a case is to set the plea aside as improperly

accepted. See R.C.M. 910(a)(2). This case was tried before we decided

Phillips, before this problematic aspect of conditional pleas was

revealed. However, as we noted, “Staff judge advocates and military

judges should not permit conditional pleas that only preserve issues

that would not terminate the prosecution . . . .” Phillips, 32 M.J. at

957.

23a

confinement for 35 years, forfeiture of $424 pay per

month for 420 months, and reduction to E-1. Complying

with a pretrial agreement, the convening authority reduced

the period of confinement to 15 years and approved the

other aspects of the sentence.

In December 1986, while stationed at Vandenberg Air

Force Base, California, McLaren married V. The couple

moved into base housing with V’s two daughters, ages 11

and 5. Within a few months, McLaren began an abhorrent

sexual excapade with his stepdaughters, progressing from

initial experiments of indecent acts with the younger girl to

forcible acts of sodomy with both girls, and eventually to

raping the older girl. His crimes continued through his

reassignment to San Vito Air Station, Italy, in June 1988,

until he was caught in April 1990.

On 15 April 1990, the Air Force Office of Special in-

vestigations (OSI) detachment at San Vito received infor-

mation about McLaren’s crimes. Agents Sarantis and

Bianco, both 3-year veterans of the OSI, investigated the

case. On 16 April, the agents interviewed the older girl at

the base clinic. The following afternoon, the agents went

to McLaren’s base residence, identified themselves in his

presence, explained that they needed to talk with V about

her older daughter, and transported V to the clinic.

McLaren followed the agents to the clinic in a separate

car, approached them in the clinic parking lot, and stated

his desire to talk with them. Without indicating the true

subject of their investigation, Sarantis told McLaren they

first needed to speak with V and the older girl and would

talk to him later. McLaren stated he would be available and

returned home. Later that afternoon, after interviewing

both girls and medical personnel, the agents again went to

24a

McLaren’s house, invited him to speak with them, and

transported him to the base clinic.

At the clinic, the agents took McLaren to an unoccupied

conference room where Sarantis formally re-identified

himself, informed McLaren of the offenses of which he

was suspected, and advised him of his rights by reading an

Air Force Form 189 (rights advisement card). After being

informed of his right to counsel, McLaren responded to

the agent’s question by stating he did not want a lawyer.

He affirmatively waived his right to remain silent and

agreed to answer questions.

After some introductory questions designed to put

McLaren at ease, Sarantis asked him when he had first had

sex with his older stepdaughter. McLaren replied, “These

things happen.” Sarantis then repeated the question.

McLaren looked down and said something to the effect, “I

think I want a lawyer,” or “I think I need to talk to a

lawyer.” After a brief pause, Sarantis stated, “Yes, this is a

serious matter,” and Agent Bianco said, “Yes, this is a

decision you’ll have to make. We can’t force you to stay

here. You need to decide what you want to do.” After a

brief period of silence and with no further questions,

McLaren began an emotional confession. The agents

resumed their questioning, continued for about an hour,

then adjourned to the OSI offices where they assisted

McLaren in preparing a written statement. Before he

signed the statement, the agents once again formally ad-

vised him of his rights, including his right to counsel.

McLaren waived each of his rights by initialing and sign-

ing the form.

Appellant contends that his Fifth Amendment rights

were violated when the military judge refused to suppress

25a

his statements to the OSI after he said, “I think I want a

lawyer,” or words to that effect. He asserts the OSI agents

erred by failing to either stop the interview or clarify his

request for counsel. Under the facts of this case, we

disagree.

The Fifth Amendment to the Constitution provides:

“No person . . . shall be compelled in any criminal case to

be a witness against himself. . . .” To enforce the promise

of this venerable safeguard, both legislative and judicial

remedies have evolved to ensure that individual rights are

respected during police operations and that personal will is

not overborne by investigative zeal.

For those in the military, Article 31(a) of the Uniform

Code of Military Justice reinforces the Fifth Amendment

guarantee by forbiding anyone subject to the code from

“compel[ling] any person to incriminate himself or to

answer any question the answer to which may tend to in-

criminate him.” Article 31(b) directs that anyone who

suspects another of an offense may not question him

without first informing him of the offenses of which he is

suspected, his right to remain silent, and the possibility

that any statement he makes may be used against him in a

court-martial. Article 31(d) provides the enforcement

mechanism, barring the admission in evidence of any

statement received in violation of the article.

In its landmark case of Miranda v. Arizona, 384 U.S.

436 (1966), the Supreme Court set forth the familiar rights

advisement requirements whenever police conduct a

“custodial interrogation.” Included is the requirement that

police advise the suspect of his right to the presence of

counsel during questioning. The Court of Military Ap-

peals applied Miranda to military investigations in United

States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249

(1967); see also Mil. R. Evid. 305(d). Thus, any statement

26a

obtained during a custodial interrogation? in violation of a

suspect’s right to counsel is inadmissible in a court-

martial.

In Miranda, the Supreme Court ruled that if a suspect

“indicates in any manner and at any stage of the process

that he wishes to consult with an attorney before speaking

there can be no questioning.” 384 U.S. at 444-45. Later,

the Court established the bright-line rule that “an accused

. . . having expressed his desire to deal with police only

through counsel, is not subject to further interrogation by

the authorities until counsel has been made available to

him, unless the accused himself initiates further com-

munications, exchanges, or conversations with the police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also

United States v. Harris, 19 M.J. 331 (C.M.A. 1985) (ap-

plying Edwards to the military). In Smith v. Illinois, 469

U.S. 91, 98 (1984), the Court noted, “Where nothing

about the request for counsel or the circumstances leading

up to the request would render it ambiguous, all question-

ing must cease.”

We must first determine whether McLaren’s comments

were an unambiguous request for counsel. To do so, we

examine the ordinary meaning of his words within the con-

text of the circumstances leading up to his remark, but not

2 After our preliminary examination of this record, we specified the

issue Of whether the interrogation here was custodial as required to

implicate the right to counsel under Miranda. In his findings of fact

on the suppression motion, the military judge found that McLaren

was properly advised of both his Article 31 rights and his rights to

counsel. Inherent in the latter finding is a determination that the ac-

cused was in fact “in custody” at the time of the interrogation.

“Custody” is evaluated by “how a reasonable man in the suspect’s

position would have understood his situation.” Berkemer v. McCarty,

468 U.S. 420, 442 (1984). Applying this standard to the facts, we find

that the interrogation of appellant was custodial, and hence the ad-

visement as to the right to the presence of counsel was appropriate.

6 ei te ak

27a

his statements or actions that followed. Smith, 469 U.S. at

100. We find that the words “I think I want a lawyer” or “I

think I need to talk to a lawyer” did not signal a definite

intention or desire on McLaren’s part, but simply hinted

that he was considering his options. McLaren’s statement

alluding to his possible desire to consult with an attorney

amounts at most to an equivocal request for counsel.

Both Edwards and Oregon v. Bradshaw, 462 U.S. 1039

(1983), a subsequent Supreme Court decision discussing

an effective waiver of Miranda rights and reinitiation of

interrogation by an accused, involved unequivocal invoca-

tions of the right to counsel. McLaren’s equivocal invoca-

tion of the right to counsel will first be tested against the

Edwards standard.

Edwards requires investigators to stop questioning after

a suspect invokes his right to counsel, unless the suspect

“initiates” further exchanges with the police. 451 U.S. at

484-85. In Bradshaw, the Supreme Court reaffirmed Ed-

wards, clarifying “initiation” to mean inquiries or

statements that “represent a desire on the part of an accus-

ed to open up a more generalized discussion relating

directly or indirectly to the investigation.” 462 U.S. at

1045; see also United States v. Applewhite, 23 M.J. 196

(C.M.A. 1987); United States v. Groh, 24 M.J. 767

(A.F.C.M.R. 1987). The Court has also explained that the

prosecution must independently establish both initiation

of the discussion and a knowing, intelligent, and voluntary

waiver of the previously invoked right. Moran v. Burbine,

475 U.S. 412, 421 (1986); Bradshaw, 462 U.S. at 1044-46.

The existence of a waiver depends upon “ ‘the particular

facts and circumstances surrounding [the] case, including

the background, experience, and conduct of the

accused.’ ” Id. at 1046 (quoting North Carolina v. Butler,

441 U.S. 369, 374-75 (1979) and Johnson v. Zerbst, 304

U.S. 458, 464 (1938)). A waiver need not be explicit, but

28a

may be inferred from the suspect’s actions and statements.

Butler, 441 U.S. at 373.

McLaren’s confession followed a period of silence after

Agent Bianco told him it was his decision as to how to pro-

ceed. Although his confession occurred at the same loca-

tion and within a relatively short period of time after the

agents stopped their questioning, it was in fact voluntary,

uncoerced, and unprompted by the agents’ intervening

remarks. Hence, we find that McLaren reinitiated the in-

terrogation, as occurred in Bradshaw. Examining these

circumstances within the context of his background, ex-

perience, and previous conduct during the investigation,

we further find that he knowingly, intelligently, and

voluntarily waived his right to counsel. Though he did not

articulate it as such, he clearly decided to continue without

counsel. That decision was the product of his reflection,

initiative, and willingness to cooperate.

When a suspect unequivocally expresses a desire for an

attorney, investigators must halt all questioning.

However, as in the case before us, where a suspect’s

remarks are vague and ambiguous, the appropriate

response is less certain and is not clearly governed by the

Edwards rule. The Supreme Court has explicitly declined

to resolve the broader issue of whether an equivocal state-

ment constitutes an invocation of the right to counsel.

Connecticut v. Barrett, 479 U.S. 523, 529-30 n.3 (1987);

Smith, 469 U.S. at 95-96.

Courts have adopted three different approaches to

resolving cases involving the equivocal assertion of rights.

See generally Annotation, What Constitutes Assertion of

Right to Counsel Following Miranda Warnings — Federal

Cases, 80 A.L.R. Fed. 622 (1986); Annotation, What con-

stitutes Assertion of Right to Counsel Following Miranda

Warnings — State Cases, 83 A.L.R. 4th 443 (1991). Some

courts read Miranda liberally and require that even upon a

a a tieiah: Red tens eee eee oe

29a

vague reference to an attorney or ambiguous behavior

evidencing a possible desire for counsel, all questioning

must cease. E.g., People v. Randall, 1 Cal 3d 948, 83 Cal.

Rptr. 658, 464 P.2d 114 (1970). Others take a more conser-

vative approach, holding that there exists a “threshold of

clarity” beyond which officers must halt an interrogation.

E.g., People v. Krueger, 82 ill. 2d 305, 45 Ill. Dec. 186,

412 N.E.2d 537 (1980), cert. denied, 451 U.S. 1019 (1981).

Still other courts, in an attempt to balance the rights of an

accused with prosecutorial interest, require that after an

equivocal reference to counsel, investigators must limit

further questioning to inquiries seeking clarification of the

suspect’s desires. E.g., United States v. Fouche, 833 F.2d

1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988).?

This procedure avoids the inflexible rule that precludes

further questioning after any vague reference to counsel,

but provides investigators and the courts with a standard

that protects suspects who want an attorney but “whose re-

quests fail to meet an arbitrary threshold of clarity.”

Hampel v. State, 706 P.2d 1173, 1180 (Alaska App. 1985).

Along with the Army Court of Military Review, this Court

has adopted the latter approach, permitting questions that

seek clarification. See United States v. Mathis, 31 M.J.

726 (A.F.C.M.R. 1996}; United States v. Palmer, 29 M.J.

929 (A.F.C.M.R. 1989); United States v. Whitehead, 26

M.J. 613 (A.C.M.R. 1988).

3} A majority of the Circuit Courts of Appeal now follow this ap-

proach. See United States v. Porter, 776 F.2d 370 (ist Cir. 1985);

United States v. Gotay, 844 F.2d 971 (2nd Cir. 1988); United States v.

Riggs, 537 F.2d 1219 (4th Cir. 1976); United Staies v. Cherry, 733

F.2d 1124 (Sth Cir. 1984); Smith v. Endell, 860 F.2d 1528 (9th Cir.

1988), cert. denied, _ U.S. __ 111 S.Ct. 510 (1990); Towne v. Dugger,

899 F.2d 1104 (11th Cir.), cert. denied, _. U.S._, 111 S.Ct. 536

(1990).

30a

In Whitehead, the accused commented during a post-

polygraph interview, “Maybe I should get a lawyer.” The

interviewing agent then remarked, “Well this is your deci-

sion; it’s a decision you’re going to have to make.” After a

brief pause, the agent continued, “If you didn’t do

anything wrong, Ed, you don’t need one, right?” 26 M.J.

at 615. The Army Court found the accused’s comments to

be an equivocal request for counsel, and ruled that in-

vestigators had the responsibility to make reasonable at-

tempts at clarification if they desired to continue question-

ing. Jd. at 618. The court implicitly accepted the trial

judge’s ruling that the agent’s initial remarks advising the

accused of his decision were “the essence of the request for

clarification.” Jd. at 616. The court then focused on the

final remark and determined the investigator was trying to

dissuade the accused for exercising his right to counsel.

Thus, the court held it was not an attempt at clarification,

but rather “subtle but continued interrogation” that

“served to mislead the appellant and to undermine his

ability to invoke his right to counsel.” Jd. at 619.

We now turn our attention to the OSI agents; responses

in this case, evaluating their actions in light of their

responsibility to cease questioning and to seek clarifica-

tion. The agents’ remarks were neutral* in content and

spontaneous in nature. If anything, Agent Sarantis’

remark about the seriousness of the offenses would tend to

encourage a suspect to stop the interview and consult with

counsel. Agent Bianco’s remarks reinforcing the need for

appellant to make a decision can reasonably be viewed as

an attempt to prompt appellant to clarify his desires.

Following careful scrutiny of the record, we conclude that

the agents’ remarks were neither designed to nor had the

* Cf. Hall v. State, 336 S.E.2d 812, 819 (Ga. 1985) (agents’ remarks

found to be “neutral”).

3la

effect of misleading, dissuading, or further interrogating

appellant. Hence, the agents did not violate their respon-

sibility to halt the interrogation. °

In sum, after McLaren uttered his equivocal reference

to counsel, the investigators ceased their interrogation.

Their subsequent comments were neutral and provided

McLaren the opportunity to clarify his vague statement.

McLaren reinitiated the interrogation by resuming the

conversation, even though he did not explicitly clarify his

earlier reference to counsel. Focusing on this narrow fac-

tual scenario, we hold that where a suspect voluntarily

reinitiates discussions related to the investigation, he effec-

tively clarifies the earlier ambiguous request for counsel.

At that point, investigators have no further obligation to

pursue the suspect’s indecision and may resume the inter-

view. McLaren’s confession was otherwise voluntary and

properly admitted in evidence against him. His Fifth

Amendment rights were not violated.

5 Our holding on this issue is specific to the facts in this case. We

strongly encourage investigators (and those responsible for their train-

ing) to follow the guidance of Fouche and Mathis, supra. In Fouche,

when the suspect indicated he “might want to talk to a lawyer” and

that he wanted to make a telephone call, Federal Bureau of Investiga-

tion agents immediately stopped the interrogation, permitted him to

make a call in private, readvised him of his rights, and asked him

whether he understood his rights and wished to waive them. Before

resuming the interrogation, the agents ascertained the the suspect had

not telephoned an attorney. 833 F.2d at 1285-86. In Mathis, OSI

agents chose the most direct approach to resolve the suspect’s con-

fused reference to counsel: “{I]f you want a lawyer, we'll stop right

now and I'll get you a lawyer. . . . Do you want a lawyer?” 31 M.J. at

727 (emphasis added). The agents’ conduct in these cases stands above

reproach and avoids suspicion of ulterior motive or design. Their con-

duct provides a model for investigators who are confronted with am-

biguous behavior or an unclear reference to counsel.

32a

Appellant next alleges the military judge erred when he

denied a defense challenge for cause against a court

member who refused to consider the sentencing option of

“no punishment.”

In response to the defense counsel’s initial inquiries on

voir dire of the panel, the member in question indicated he

could not consider imposing no punishment.® During in-

dividual voir dire by counsel, he first reiterated his earlier

statement, then indicated that upon a review of all the

facts, he could consider a level of punishment that was not

very severe. He also stated he did not have any moral con-

viction that would inflame his passions and lead him to

recommend a severe sentence. Additionally, in response to

a question by the military judge, he replied that he could

6 The defense counsel’s opening voir dire questions were:

Q: Would all of you agree with me that what you have in

front of you and what Sergeant McLaren has pled guilty to and

been found guilty of are some of the most serious offenses known

to the law?

Q: The reason I ask you that at this point in the trial, accord-

ing to the judge’s instructions, you are not to have any particular

seiitence in mind, either lenient or very severe, or any kind of a

sentence. . . . [A]t one point in the trial, the judge is going to tell

you that no punishment is an option. Without regard to whether

that is a reasonable or a ridiculous idea at this point in time,

without having any presentation of evidence, is there anyone on

this jury that can honestly and seriously consider no punishment

just by what you’ve read in front of you?

The defense counsel polled all eleven members individually on their

answers to the second question. Nine of the eleven responded that they

could not consider the option. The defense counsel then pursued the

issue during individual voir dire of four of the members, challenged

two for cause, and, upon the judge’s denial of the challenges, exer-

cised his peremptory challenge against one of the two. The remaining

challenged member is the subject of the assigned error.

33a

discuss and deliberate with the other members and vote on

an appropriate sentence based on the facts presented and

the law as given by the military judge.

It is axiomatic that an accused is entitled to be tried by

court members who will keep an open mind and arrive at

an appropriate sentence in accordance with the evidence

presented at trial and the law as announced by the trial

judge. United States v. Reynolds, 23 M.J. 292 (C.M.A.

1987). To help assure courts-martial are free from any

taint of illegality, unfairness, or partiality, R.C.M. 912(f)

delineates a number of bases for challenges and removal

for cause.

As the Court of Military Appeals has urged, we strongly

encourage military judges to be liberal in granting

challenges under this rule. Reynolds, 23 M.J. at 294;

United States v. Smart, 21 M.J. 15, 21 (C.M.A. 1985).

Recognizing, however, the advantageous position of the

military judge in assessing potential bias, as well as the

many factors that he must balance quickly and without

opportunity for reflection, we will reverse a ruling on a

challenge only if we find a clear abuse of discretion.

United States v. Hawks, 19 M.J. 736 (A.F.C.M.R. 1984).

To find an abuse of discretion requires much “more

than a difference in . . . opinion. . . . The challenged ac-

tion must . . . be found to be ‘arbitrary, fanciful, clearly

unreasonable,’ or ‘clearly erroneous’ in order to be in-

validated on appeal.” United States v. Yoakum, 8 M.J.

763, 768 (A.C.M.R. 1980), aff'd on other grounds, 9M.J.

417 (C.M.A. 1980), quoting United States v. Glenn, 473

F.2d 191, 196 (D.C. Cir. 1972); see also United States v.

Travers, 25 M.J. 61, 62 (C.M.A. 1987). If we find such

abuse, we do not hesitate to set aside a conviction. See

United States v. Abdelkader, __M.J. __, (A.F.C.M.R. 23

January 1992). In this case, however, we do not find that

the trial judge abused his discretion.

34a

A ground for challenge exists if a member demonstrates

an “inelastic attitude” toward sentencing responsibilities.

United States v. Davenport, 17 M.J. 242, 245 (C.M.A.

1984); United States v. Tippit, 9 M.J. 106, 107 (C.M.A.

1980). One is not automatically disqualified, however, be-

cause Of an expression of an unfavorable inclination

toward a particular offense. Reynolds, 23 M.J. at 294;

United States v. Fort, 16 U.S.C.M.A. 86, 90, 36 C.M.R.

242, 245-46 (1966). Similarly, an articulation of a predis-

position toward adjudging a particular form of punish-

ment is not in and of itself disqualifying. United States v.

McGowan, 7 M.J. 205, 206 (C.M.A. 1979); United States

v. Blevins, 17 M.J. 678, 680 (A.C.M.R. 1988). “Rather,

the test is whether the member’s attitude is of such a nature

that he will not yield to the evidence presented and the

judge’s instructions.” McGowan, 7 M.J. at 206. Addi-

tional voir dire is the vehicle for clarifying a member’s at-

titude toward sentencing. Smart, 21 M.J. at 19-20.

In this case, the member’s initial response, seeming to

foreclose the “no punishment” option, was predicated

solely upon his review of the charges of which appellant

stood convicted. His bluntly honest answer voiced a senti-

ment that is difficult to avoid when one is confronted with

a naked description of appellant’s crimes.’ His subsequent

responses, though, showed that he would review the evi-

dence before reaching a decision and would follow the

’ The Court of Military Appeals, reviewing a general court-martial

involving a sexual assault on an elderly woman, commented:

Some offenses are so heinous or so repugnant to common decen-

cy that the first thought of a court member might well be that the

accused should, if convicted, be sentenced to a punitive dis-

charge. A provisional impression of this kind is practically

unavoidable.

Fort, 16 U.S.C.M.A. at 89, 36 C.M.R. at 245.

35a

judge’s instructions. Although the member could have

been questioned more thoroughly by the military judge,

we are Satisfied that he did not have an “inelastic attitude”

toward punishment. Hence, we find that the military

judge did not abuse his discretion in denying the

challenge. ®

IV

Finally, appellant contends the military judge erred

when, in response to a court member’s question, he in-

formed the members of the existence of parole and good

time credit. The following occurred during a break from

deliberations:

PRES: The final question, Your Honor, is con-

cerning parole. Is there parole from a military

sentence?

MJ: There is parole within the military and the

federal system, both, and there’s also good time

® Although we do not find that the judge abused his discretion,

another matter requires our attention. In an out-of-court hearing

prior to individual voir dire, the military judge stated that “the mere

statement in the abstract that the member cannot on the basis of find-

ings of guilty of these charges entertain the possibility of no punish-

ment is not in my view a disqualifying factor.” See United States v.

Deain, 5 U.S.C.M.A. 44, 49, 17 C.M.R. 44, 49 (1954). In his ultimate

ruling on the challenges for cause, the judge referred to the earlier

comment as a basis for denial. The judge’s comment was an in-

complete paraphrase of the law as stated in McGowan. 7 M.J. at 206.

Despite the comment, the military judge invited the defense counsel to

pursue the issue during individual voir dire of the members. Since the

issue was explored through further questioning by both trial and

defense counsel and the military judge, we do not find the judge’s

misstatement of the law to be prejudicial error. His ultimate ruling

denying the challenges, though referencing the earlier comment, was

within the broad range of judicial discretion.

36a

credit. But I’m not going to instruct you in detail on

that procedure because it’s nothing that you can do

anything about and you can’t take that into con-

sideration in adjudging what you believe to be an ap-

propriate sentence.

PRES: I see.

MJ: That’s within the purview of other authori-

ties.

PRES: Very good, Sir....

In response to a defense request for further insturctions,

the military judge reemphasized to the members that those

factors were not for their consideration:

MJ: Right. As I’ve indicated, you should adjudge

what you believe to be an appropriate sentence with-

out relying on mitigating action by any authority in

the case.

PRES: Your point has been taken, Your Honor.

The administrative procedures that permit penal au-

thorities to adjust a prisoner’s release date are collateral to

the sentencing function. Hence, when fashioning an ap-

propriate sentence, the court should not speculate as to

any administrative relief that might be granted during con-

finement. It is well-established that an accused should be

sentenced without regard to any collateral administrative

consequences of the punishment. United States v. Hender-

son, 29 M.J. 221 (C.M.A. 1989); United States v. Mur-

phy, 26 M.J. 454 (C.M.A. 1988); United States v. Griffin,

25 M.J. 423 (C.M.A.), cert. denied, 487 U.S. 1206 (1988);

United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31

C.M.R. 195, 198 (C.M.A. 1962); but cf. United States v.

Rosato, 32 M.J. 93 (C.M.A. 1991) (error to bar accused

from commenting in unsworn statement on collateral mat-

ters about return-to-duty program). _

37a

It is not necessarily error, however, for a military judge

to answer court members’ questions on collateral conse-

quences of sentencing alternatives. Griffin, 25 M.J. at

425; United States v. Nixon, 30 M.J. 501, 506

(A.F.C.M.R. 1989).9 In this case, the military judge mere-

ly acknowledged the existence of two related mechanisms

for administrative relief —one of which the members had

apparently discussed. In subsequent comments, he clearly

directed the members not to consider those or any similar

extraneous matters during their deliberations. We con-

clude that this explicit guidance was appropriate and ade-

quate to preclude any improper consideration by the

members. See United States v. Ricketts, 1 M.J. 78

(C.M.A. 1975); United States v. Cerniglia, 31 M.J. 804,

806 (A.F.C.M.R. 1990).

9 Military judges must tread carefully when responding to a court

member’s question on such matters. Ordinarily, the appropriate reply

is simply to affirm that “collateral consequences are not germane” to

the sentencing process. Griffin, 25 M.J. at 424. With the accused’s

permission, though, the judge may venture further. However, that

path is fraught with hazards. The answer must be clear, despite the ex-

temporaneity of the occasion. /d. It must also be accurate and com-

plete. This is of particular concern, since military judges are less likely

to be fully informed as to collateral consequences. Griffin, 25 M.J. at

425 (concurring opinion by Everett, C.J.). Finally, the potential for

unnecessary confusion, resulting from inundating the members with

administrative trivia, must be avoided. Quesinberry, 12 U.S.C.M.A.

at 612, 31 C.M.R. at 198; see Mil. R. Evid. 403.

38a

Vv

The approved findings of guilty and the sentence are

correct in law and fact and, on the basis of the entire

record, are

AFFIRMED.

Senior Judge LEONARD and Judge JAMES concur.

[SEAL]

OFFICIAL

/s/ Pamela D. Stevenson

PAMELA D. STEVENSON

Captain, USAF

Chief Commissioner

vy U.S. GOVERNMENT PRINTING OFFICE: 1993—361-519/87011