Andrea Piloto and Rebecca Naranjo, two 3Ls at the FIU College of Law, recently filed an amicus curiae brief with the Air Force Court of Criminal Appeals (AFCCA). On Tuesday, October 24, 2017, FIU College of Law will be hosting AFCCA as the Court hears appellate oral argument in the case United States v. Airman Basic Braxton T. Swafford. This hearing will take place in the Large Courtroom at noon.
AFCCA is an Article 1 court created by Congress to hear the appeals taken from courts-martial that occur in the Air Force. Each service has a Court of Criminal Appeals, with the Navy and Marine Corps sharing a court. The Army Court of Criminal Appeals conducted a hearing at FIU last year.
Ms. Piloto and Ms. Naranjo are enrolled in the Military Justice course taught by Professor Eric Carpenter, a retired Army judge advocate. As part of their coursework, Ms. Piloto and Ms. Naranjo worked with Professor Carpenter to draft the amicus curiae brief. They filed the brief on Oct. 17, 2017.
Their brief discusses a service member’s privilege against self-incrimination pursuant to Article 31 of the Uniform Code of Military Justice. In this case, the appellant, through his counsel, invoked several rights, to include that privilege and his rights to counsel. The appellant was then convicted of an offense and while in post-trial confinement, the government re-approached him to interview him about another offense while he was still represented by his first counsel. His military appellate attorneys are arguing that by doing so the government violated his rights to counsel.
In the amicus brief, Ms. Pilot, Ms. Naranjo, and Prof. Carpenter argue that the government violated his Article 31 rights by re-approaching him. Congress created Article 31 more than a decade before the Supreme Court’s Miranda opinion. It exists to protect people in the military who are suspected of an offense from being interrogated by senior officers or law enforcement without being warned of the right not to make any statements. Congress was trying to protect service members from the inherently coercive environment that exists in the military because where people are trained to do what they are ordered to do and so might give a statement because a senior person told them to. When under investigation, service members need to be told that they do not have to give a statement even if ordered.
While Miranda and relevant case law allow the government to re-approach an accused person after the accused invokes his Miranda rights, the amicus brief argues that Article 31 requires that the government scrupulously honor the accused’s invocation and must thereafter cease questioning altogether.