United States v. Harpole decided

CAAF today issued its opinion in United States v. Harpole on revisit. In this per curiam opinion Judge Maggs wrote for himself and Senior Judge Crawford concurring in the judgment but for different reasons.

At Harpole's visit to CAAF they remanded for a Dubay hearing to get the facts on a suppression issue not raised at trial but raised on appeal via an IAC claim.

Appellant claims the statements he made to Yeoman First Class (YN1) HN, the victim advocate, were in fact inadmissible at his court-martial because she did not first advise him of his rights
under Article 31(b)[.] He further alleges that his trial defense counsel were ineffective for failing to file a motion to suppress the statements under Article 31(b).

The question is, on the facts, whether a victim advocate was required to give Article 31(b) warnings, failed to do so, which made the Appellant's statements to her inadmissible. Agreeing with robust findings of the Dubay judge, CAAF finds

YN1 N did not do anything that suggested that she was acting for law enforcement or disciplinary purposes: she did not take notes, order Appellant or SNBM Childers to answer questions or write statements, or reach out to the Coast Guard Investigative Service with a report. Harpole, 79 M.J.
at 744–45. In fact, she was so removed from that kind of role that she had no familiarity with Article 31(b) warnings at all.

Instead, she acted as a supportive victim advocate: she simply listened to Appellant’s allegation of sexual assault and then briefed the chain of command about the report, in accordance with her victim advocate training. Harpole, 79 M.J. at 745. The few questions that she asked and to which Appellant responded were not made in an interrogating manner and did not elicit incriminating statements from Appellant. Id. Therefore, Appellant’s Article 31(b) claim fails.

On the other hand, Judge Maggs took a different view.

I also would affirm the CGCCA, but I would do so on the basis of the Government’s first argument. At a DuBay1 hearing, a military judge found as a fact that Appellant did not make any incriminating statements in response to the victim advocate’s questions. That should be the end of the matter. I would not use this case to set a precedent on the much more complicated question of whether victim advocates act for law enforcement or disciplinary purposes.

The CAAF may well be right, but I think they are wrong on policy grounds (which I realize they do not decide). 

​-Phil Cave