PFC Jarlego was first convicted of two specifications of rape of a child and one specification of sexual abuse of a child in 2021. At trial, the alleged victim did not testify and the Government established her age through a birth verification record provided by the state in which she was born. On appeal in 2023, the Army Court of Criminal Appeals found that the admission of the birth verification record violated PFC Jarlego’s rights under the Confrontation Clause of the Sixth Amendment. It set aside the findings and authorized a rehearing.
At the rehearing, the defense moved to suppress PFC Jarlego’s confession to CID as involuntary. The CID agent who questioned PFC Jarlego spent approximately half an hour with him in the interview room getting background information before he went over his rights. During this period, the agent gave him a general idea of the nature of the investigation and asked him a few questions about it before returning to other topics. Eventually, the agent went over his rights with him, but told PFC Jarlego that he thought that the discussion they would have about the allegation would be beneficial to him. He went on to tell PFC Jarlego to scratch out the word “accused” and that the word “suspected” just meant that someone had said he did something, even when everyone knows it is not true. PFC Jarlego waived his rights and eventually confessed to engaging in sexual activity with the alleged victim. His statement was admitted at trial as evidence of all three specifications and provided the only evidentiary basis for one of the specifications with which he was later charged.
The Military Judge denied the motion to suppress the entire statement, but he did suppress the statements made before the rights warning was provided. PFC Jarlego was convicted of the same three offenses in his rehearing and sentenced to a dishonorable discharge, 42 months confinement, and reduction to E-1.
On appeal, PFC Jarlego’s attorney argued that the CID agent had violated his Fifth Amendment and Article 31(b), UCMJ, rights in obtaining his confession. The Army Court of Criminal Appeals agreed. In an opinion issued last month, the Court determined that the agent tricked PFC Jarlego into waiving his rights in several ways. First, the Court found that the agent had given him an incorrect and misleading definition of being a suspect. Second, the Court found that the agent erred by not giving PFC Jarlego a “cleansing warning” when he went over his rights with him.
A cleansing warning is needed when a suspect has made incriminating responses to unwarned questioning. When this happens, the officer advising the suspect of his rights to remain silent and to consult with an attorney must inform the suspect that these unwarned statements will not be able to be used against him. This eliminates the possibility that the suspect agrees to waive his rights and confess because the “cat is already out of the bag.”
In this case, the CID agent had asked PFC Jarlego a few questions, including whether or not he knew the victim and whether or not he used Snapchat to communicate with girls, before he advised him of his rights. He did not give a cleansing warning when he finally did advise PFC Jarlego of his rights, and then afterwards incorporated those unwarned responses into his interrogation, leading to PFC Jarlego’s confession.
Finally, the Court found that the agent’s statements that waiving his rights and speaking to him would be “beneficial” to him was also misleading. The Court determined that the CID agent deceived PFC Jarlego and violated his rights under the Fifth Amendment and Article 31(b), UCMJ. The Court further determined that this violation of his rights prejudiced PFC Jarlego because the confession was used to form the basis for one of the specifications and to convict him of all three.
The Court set aside the findings and sentence and ordered a rehearing on the two specifications that were not based upon the confession. The Court dismissed that specification.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.