"A little bird told me": U.S. v. Finch and the death of the McOmber rule: the procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free

Introduction

During the past court term, the Court of Appeals for the Armed Forces (CAAF) expressly overturned the McOmber (2) notification of counsel rule in United States v. Finch. (3) In 1976, the Court of Military Appeals (COMA) created the McOmber rule which required law enforcement or disciplinary authorities to notify a represented suspect's counsel before questioning him at any point in an investigation or criminal prosecution. (4) Later Supreme Court and CAAF decisions interpreting a suspect's fight to counsel under the Fifth and Sixth Amendments cast a great deal of doubt on whether the McOmber notification of counsel rule was still good law. (5) The Finch case has put that question to rest. This article traces the rise and fall of the McOmber notification of counsel rule by following the cases and changes to the Rules for Courts-Martial (RCM) that led to its extinguishment.

In addition to discussing the McOmber rule, this article reviews three other CAAF cases and one service court opinion. The first two cases, United States v. Cohen (6) and United States v. Brisbane, (7) examine the circumstances in which a civilian social worker and a uniformed inspector general must advise soldiers of their rights under Article 31, UCMJ. The final two cases examined in this article involve remediation efforts by trial judges in cases involving grants of de facto immunity. The first is the CAAF case of United States v. McKeel. (8) In McKeel, the CAAF approved remedial measures taken by a military judge at trial which preserved the results of a successful prosecution. In contrast, the Air Force Court of Criminal Appeals (AFCCA) in United States v. LeBaron (9) determined that the remedial measures taken by a judge at trial were insufficient and overturned the case.

The Birth, Diminishment, and Death of the McOmber Rule

The Birth of the McOmber Rule

Airman James E. McOmber was escorted to the security police office at Dover Air Force Base, Delaware, after implicating himself in the theft of a tape deck while being questioned at his residence. (10) When he arrived at the security police office, Agent Caloway advised McOmber of his Article 31, UCMJ, and Miranda rights. (11) After being advised of his rights, McOmber immediately requested counsel and the interview terminated. (12) Before McOmber left, Agent Caloway helpfully provided him with the name and telephone number of the area defense counsel. (13)

After this initial interview, McOmber's defense counsel contacted Agent Caloway to discuss the case. (14) Two months after this conversation with McOmber's defense counsel, Agent Caloway contacted McOmber and set up another interview. (15) At this interview, which was conducted without notice to McOmber's defense counsel, Agent Caloway again advised McOmber of his Article 31, UCMJ, and Miranda rights. (16) This time, McOmber not only waived his rights but also provided a written statement which was later offered at trial to prove his guilt. (17)

At trial, defense counsel objected to the admission of McOmber's statement to Agent Caloway on the grounds that the second interview "infringed upon [McOmber's] Sixth Amendment right to counsel in that Agent Caloway proceeded with the interview without first notifying his attorney and affording him an opportunity to be present." (18) On appeal, as at trial, McOmber objected to the admission of his statement to Agent Caloway. (19) In response to the defense allegation of error, the government appellate counsel stated "that where a criminal investigator knows of [an accused's] exercise of [his] fight to counsel in defense of criminal charges, he should deal directly with counsel, not the accused on the same basis applicable to trial counsel under paragraph 44h, Manual for Courts-Martial, United States, 1969 (Rev)." (20) The government appellate counsel also "concede[d] that any other approach could all too easily deprive the accused of his Sixth Amendment right as enunciated in" Massiah v. United States. (21) Despite conceding that Agent Caloway erred by interviewing McOmber without first notifying his counsel, the Government requested that this error be viewed as harmless because McOmber voluntarily waived his counsel's presence in response to a rights advisement that preceded the interview. (22)

Despite this invitation to find harmless error, the COMA ruled that the Government had ample notice of the standard of conduct expected and that:

   If the right to counsel is to retain any vitality, the focus in
   testing for prejudice must be readjusted where an investigator
   questions an accused known to be represented by counsel. We
   therefore hold that once an investigator is on notice that an
   attorney has undertaken to represent an individual in a military
   criminal investigation, further questioning of the accused without
   affording counsel reasonable opportunity to be present renders any
   statement obtained involuntary under Article 31(d) of the Uniform
   Code. This includes questioning with regard to the accused's future
   desires with respect to counsel as well as his right to remain
   silent, for a lawyer's counseling on these two matters in many
   instances may be the most important advice ever given his client.
   To permit an investigator, through whatever device, to persuade the
   accused to forfeit the assistance of his appointed attorney outside
   the presence of counsel would utterly defeat the congressional
   purpose of assuring military defendants effective legal
   representation without expense.