"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

(154) Id. (quoting Raymond, 38 M.J. at 140).

(155) Id. at 112-13.

(156) Id. at 113.

(157) Id.

(158) Id. at 114. A cleansing warning is a warning in which the "accused [is] warned that a previous statement cannot be used against him." United States v. Cuento, 60 M.J. 106, 109 (2004) (quoting United States v. Wimberly, 36 C.M.R. 159, 165 (C.M.A. 1966)).

(159) Brisbane, 63 M.J. at 114.

(160) 470 U.S. 298 (1985).

(161) United States v. Phillips, 32 M.J. 76, 79 (C.M.A. 1991) (holding that, "Where the earlier confession was 'involuntary' only because the suspect had not been properly warned of his panoply of rights to silence and counsel, the voluntariness of the second confession is determined by the totality of the circumstances. The earlier, unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent confession.").

(162) Brisbane, 63 M.J. at 114 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

(163) Id. at 115-16.

(164) Id. at 115.

(165) Id.

(166) Id.

(167) Id.

(168) Id. at 115-16.

(169) Id.

(170) Examples of these programs include the Family Advocacy Program (U.S. DEP'T OF ARMY, REG. 608-18, THE FAMILY ADVOCACY PROGRAM (30 May 2006)) and the Sexual Assault Prevention and Response Program (U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY ch. 8 (7 June 2007)).

(171) 63 M.J. 81 (2006).

(172) Id. at 83.

(173) Id.

(174) Id.

(175) Id.

(176) Id. at 83-84.

(177) Id. at 84. Remarkably, the SPCMCA found McKeel guilty of rape during the Article 15 proceedings and sentenced him to forty-five days restriction, forty-five days of extra duty, forfeiture of one-half pay per month for two months, and reduction from E3 to E2. Id.

(178) Id.

(179) MCM, supra note 43, R.C.M. 700.

(180) McKeel. 63 M.J. at 82-83.

(181) Id. at 83. Rule for Courts-Martial 700(c)(3) states the following: "The authority to grant immunity under this rule may not be delegated. The authority to grant immunity may be limited by superior authority." 2005 MCM, supra note 43, R.C.M. 704(c)(3).

(182) McKeel, 63 M.J. at 83. See, e.g., Shepardson v. Roberts, 14 M.J. 354, 358 (C.M.A. 1983); United States v. Caliendo, 32 C.M.R. 405, 409 (C.M.A. 1962); United States v. Thompsen, 29 C.M.R. 68, 71 (C.M.A. 1960).

(183) McKeel, 63 M.J. at 83.

(184) Id. See United States v. Jones, 52 M.J. 60, 65 (1999); United States v. Olivero, 39 M.J. 245, 249 (C.M.A. 1994).

(185) McKeel, 63 M.J. at 82.

(186) Id. at 84. The trial counsel voluntarily agreed not to introduce evidence of McKeel's waiver and to provide him full sentencing credit for punishment received as a result of his Article 15. Id.

(187) Id. at 84-85.

(188) Id. at 84.

(189) Id.

(190) Id.

(191) Id. at 85 (Erdmann, J., dissenting).

(192) Id.

(193) Id.

(194) ACM 35299, 2005 CCA LEXIS 422 (A.F. Ct. Crim. App. Dec. 23, 2005).

(195) Id. at *3-*4.

(196) Id. at *4.

(197) Id. at *15.

(198) Id.

(199) Id.

(200) Id. at *22-*23.

(201) Id.