"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

Having determined that LtCol Kluck was a person subject to the code and that he was acting in a law enforcement or disciplinary capacity, the court looked at whether LtCol Kluck should have suspected that Cohen had committed an offense. (104) While the court allowed that LtCol Kluck may have been entitled to consider Cohen a witness and not a suspect during their first meeting, the court stated that as soon as LtCol Kluck was aware that Cohen had previously been charged with rape, and that the charge might be reinstated, he should have reasonably suspected that Cohen may have committed an offense. (105) In any case, the court determined that once Cohen revealed that he took photographs of the alleged rape he "should have reasonably suspected [Cohen] of the offense of indecent acts, if not complicity in the rape itself." (106)

Despite this finding, the court concluded that the judge's error in admitting Cohen's unwarned statements to LtCol Kluck did not prejudice Cohen's trial. (107) The court pointed to the fact that Cohen pleaded guilty to the indecent act of photographing the rape, and that his conviction of the indecent act and indecent assault of the other victim was based upon overwhelming evidence of guilt in the form of eyewitnesses and photographic evidence. (108) Finally, the court noted that none of the unwarned statements that Cohen had given to LtCol Kluck implicated him in the crimes he committed against the female airmen. (109)

Pointers for Practitioners

For practitioners, the Cohen case emphasizes the broad scope of Article 31's protections for servicemembers who are, or should reasonably be, suspected of offenses. Cohen also demonstrates the narrowness of exceptions permitted for persons "subject to the Code" who may have "a mixed purpose" when asking servicemembers questions that may result in an incriminating response.

United States v. Brisbane (110)

In the late spring of 2001, United States Air Force Staff Sergeant Mark S. Brisbane's eight-year-old stepdaughter asked him what she would look like when she was older. (111) The stepdaughter later testified that she intended her question to mean what she would wear when she graduated. (112) Brisbane later told others that he misunderstood his stepdaughter's question as an inquiry into how his stepdaughter would physically develop. (113) In response to her question, Brisbane showed her naked pictures of adult women on his home computer. (114)

The stepdaughter, whose mother was on vacation in Hawaii, told a neighbor about the photos Brisbane had shown her. (115) The neighbor called the base Family Advocacy office to report Brisbane's conduct. (116) In response to this referral, the base Child Sexual Maltreatment Response Team (CSMRT) convened. (117) The CSMRT, operating under the authority of appropriate Air Force instructions, (118) consisted of a Family Advocacy Officer (FAO), an Air Force Office of Special Investigations (AFOSI) agent, a judge advocate (JA), and other agency representatives with child protection responsibilities. (119) At this meeting, it was decided that Ms. Lynch, a Family Advocacy treatment manager and civilian DOD Defense employee, should conduct the initial interview of Brisbane "to determine whether they had enough information to proceed." (120)