The Great Divide: Textbook Right to Counsel and Reality

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There is a great divide between the rights a military member in the U.S. Army is told he has in a military law enforcement investigation and the rights he truly has.

When a member of the Armed Forces is reasonably suspected of an offense under the UCMJ, that member must be advised of his rights under Article 31, UCMJ. Most often, the advice of these rights is memorialized using DA Form 3881. The rights that the member will read and initial are as follows:

  1. I do not have to answer any question or say anything.
  2. Anything I say or do can be used as evidence against me in a criminal trial.
  3. (For personnel subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both.

– or –

(For civilians not subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. I understand that this lawyer can be one that I arrange for at my own expense, or if I cannot afford a lawyer and want one, a lawyer will be appointed for me before any questioning begins.

  1. If I am now willing to discuss the offense(s) under investigation, with or without a lawyer present, I have a right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if I sign the waiver below.

But is an Army suspect ever afforded the opportunity to have a free military attorney present with them during the interrogation process?

Army Regulation 27-10 states in paragraph 6-9 that the Chief of the Trial Defense Services details counsel for general courts-martial and special courts-martial, though the authority to detail can be delegated to the Senior Defense Counsel. The delegation of detail authority is contained in the Trial Defense Service Standard Operating Procedures (SOP). According to the version of the SOP signed 24 July 2008, the policy of TDS is that, “Soldiers are entitled to USATDS services IAW law and regulation. The scope of USATDS services is defined in paragraphs 1-5 and 6-3, USATDS SOP and otherwise as specified by OTC. SDCs will ensure that support personnel who screen clients are aware of those acts that trigger the right to see USATDS counsel. No one should be denied counsel without the specific approval of the SDC.

Paragraph 1-5 states that as a Priority II duty, the following duties are primarily the responsibility of USATDS attorneys but if there are insufficient counsel, that function can be served by counsel assigned by the SJA:

  1. Counseling IAW Article 31/Miranda/Tempia requirements;
  2. Representation and/or counseling in line-up situations;
  3. Counseling suspects on criminal matters when the exercise of military jurisdiction is possible (even though jurisdiction has not been exercised)…

Paragraph 6-3 discusses services for members of the reserve component.

The SOP goes onto explain what is meant by Miranda/Tempia requirements and explicitly references United States v. King, 27 M.J. 664 (A.C.M.R. 1988), affirmed, 30 M.J. 59 (C.M.A. 1990) for the proposition that “all suspects, who are entitled to counsel under Miranda/Tempia and who request assistance of a lawyer, are entitled to the expert assistance of counsel and the counsel’s full representation. Full representation includes discussion of the facts of the case with the client and being present during any interrogation process. The counsel providing initial advice should inform suspects that the counsel may not be available to represent them in further proceedings, particularly if conducted at a distant installation. In such a case, the counsel providing initial advice should make clear to the suspect that another counsel will be detailed to represent them but that the counsel will continue to actively assist them until another counsel is detailed.”

THAT DOES NOT HAPPEN. As a practical matter, in many if not most cases, the military suspect learns that he is under investigation when military law enforcement approaches him for an interrogation. Even on the rare occasion that an Army suspect asks that an attorney be provided to him prior to answering questions, military law enforcement treats the request as an invocation of the right to remain silent. In fact, in 12 years of military practice, I am not aware of any instance when an Army suspect has requested to have an attorney present with him during interrogation has that right been afforded him. Even though that is precisely a right that he is advised of during the Article 31 Rights Warning process. See above DA Form 3881.

Even in those situations where an Army Soldier becomes aware that he is under investigation from a source other than a military law enforcement interrogation and he goes to the Trial Defense Service for guidance, I am not aware of a single instance in 12 years of practice that a member of TDS accompanied the member to military law enforcement to be present with them during interrogation. Most Army members facing investigation receive about fifteen minutes of consultation time to explain generally the facts and circumstances of their case and the counsel tells them to keep their mouth shut, perform their duties, and come back if / when the member receives an action (NJP, court-martial charges).

Despite the TDS SOP language expressly stating that the TDS counsel who provides “suspect rights” has an obligation to actively assist them until another counsel is detailed, it does not happen. The SOP does not define “active assistance”, but to any criminal defense lawyer, the concept is not a difficult one. Active assistance means attempting to speak to witnesses, securing documentary records and other evidence that will assist the client in his eventual defense. Active assistance also means advocating on the part of that client so that action never happens. Perhaps the SOP’s own language does not contemplate such action because “detailing” only happens if a case or conflict (administrative action) happens.

Whether the breakdown is at the law enforcement level when an agent refuses to honor the right to have counsel present during an interrogation or it has broken down as a result of custom of the Trial Defense Services, the effect is the same: only clients that hire civilian counsel are afforded their full rights to counsel. Such policy translates to the effective denial of counsel to the indigent, which is the entire basis for the existence of the Trial Defense Service.

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