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
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.
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).
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