MG Miller Invokes – What’s Next?

by Geoffrey Corn

As Peggy’s earlier post indicated, MG Geoffrey Miller today asserted his privilege against self-incrimination in order to avoid being questioned by the defense attorney representing a soldier pending trial for using military working dogs to abuse prisoners. Is this significant?

First, as we know from press reports, MG Miller made this decision on advice of his military defense counsel, Major Michelle Crawford. According to her statement, MG Miller’s made this decision because he has been repeatedly questioned on this subject. However, he has never been questioned by the defense counsel who believes he is a necessary witness. This attorney is attempting to determine whether MG Miller can offer relevant exculpatory evidence on behalf of a soldier facing a federal felony conviction. As a career officer, MG Miller is without question aware of that the military justice system provides an accused soldier the right to call relevant witnesses and present relevant evidence. It is also reasonable to assume that he is also aware that unless made under oath and subject to cross examination, none of those prior statements will be admissible during this soldier’s trial. Thus, it seems reasonable to infer that MG Miller did not make this decision without full knowledge the impact on the pending court-martial.

Second, MG Miller has no doubt been advised that the only remedy now available for the defense in this pending court-martial is to request that he be granted immunity and ordered to testify (which would include a requirement to submit to defense pre-trial questioning). Contrary to the report related to COL Pappas, there is no “acceptance” of immunity in military practice. Instead, when a potential witness invokes his or her privilege against self-incrimination, a request is made to the General Court-Martial Convening Authority, who is the general or admiral in command who convened (ordered) the court-martial. If this officer believes that the witness is necessary, he or she will issue a grant of immunity (almost always testimonial immunity) and an order the witness to testify truthfully. It will therefore be very interesting to see if the defense makes such a request, and even more interesting to see if it is granted.

If the request is granted, MG Miller will be required to testify truthfully to all relevant matters. If, however, the request is denied, the defense must then make a motion for appropriate relief to the Military Judge presiding in the case, who will review the basis for the denial of the immunity. If the Military Judge then determines that MG Miller’s testimony is necessary to ensure the soldier is able to present a defense and receives a fair trial, he or she will order the General Court-Martial Convening Authority to grant immunity. If that order is not complied with, the Military Judge will almost certainly abate all proceedings against the soldier.

MG Miller is no doubt well aware of this process, and that his invocation will probably result in either a grant of immunity or an abatement of the proceedings. Whether these factors support or undermine the purported justification for his decision is for each observer to decide. It is certainly possible that he believes that counsel for the accused soldier is making a frivolous request, and that neither the Convening Authority nor the Military Judge will consider him a relevant witness. However, it does seem that this could just as easily be established by submitting to a defense interview and allowing the prosecution to object to his production. The only outcome of his decision which is not speculative is that if he does testify, it will only be under a grant of immunity; and that if granted immunity, he will have no choice but to testify.

Thus, whether MG Miller ends up on a witness stand depends on two primary considerations. First, will the defense be able to make the case that he is a necessary witness. Second, will the Convening Authority be willing to order a fellow general officer to testify under a grant of immunity, or will the pending court-martial be sacrificed in order to avoid such an outcome. If he is ordered to testify, will that testimony lead to new prosecutorial efforts? Only time will tell. But, there should be no doubt that this is indeed a significant development that should lead to some interesting decisions.

http://opiniojuris.org/2006/01/12/mg-miller-invokes-whats-next/

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