(dissenting):
This hard case must not be permitted to make bad law — and I cannot agree with my brothers in their disposition of it.
II
I must enforce here the policy I find to be expressed clearly in Article 31 of the Code — and in doing this, I am required to vote to reverse the board of review. In my book, this is neither a Monge, a Gibson, nor a Volante case,1 and I, for one, would not have been willing to approve the admission in evidence of the contents of the Captain’s *466first interview with the accused — assuming there had been no other. The record reveals that the law officer at the trial felt exactly as I do in the matter.
Of course, I agree that not every conversation between military personnel— even between a military superior and a subordinate — -must be deemed “official.” At the same time, I am sure that (1) when the subject matter of the interview has to do with misconduct on the part of the latter, and (2) where the interviewer stands in the position occupied by Captain Lucas here, much more is demanded to purge the situation of its odor of officiality than I am able to find in this case.
Ill
Addressing myself to the “fruit of the poisonous tree” aspect of the problem, I entertain no doubt that, in the setting in which it confronts us here, the mere reading of Article 31 to the accused by the Captain at the opening of the second — and concededly official— interview cannot with safety be said to have interrupted a dangerously possible chain of causation. See United States v. DeLeo, 5 USCMA 148, 17 CMR 148, n 4. Against some backgrounds I might well be willing to take another view- — but not here.
Naturally, I do not believe that a precedent conversation — like the first one in this case — is inescapably fatal to any court-martial use of a subsequent warned confession. I merely say that in this situation — as well as in that discussed earlier in this memorandum — a greater burden of purgation is laid on law enforcement authorities than I find to have been sustained here. I do not at all hesitate to reach this conclusion — this for the reason that it would have been quite easy in the present case for Captain Lucas to avoid the stain of his earlier interview.
I recognize, of course, that the second conversation took place under conditions of comparative formality, and also that the accused held the grade of staff sergeant — which doubtless reflects that he did not enter the Corps yesterday. These are the only circumstances I can possibly find to balance — together with a naked reading of Article 31 — against a “poisonous tree” result. See United States v. DeLeo, supra. To me these items simply do not weigh enough.
Indeed, I would suppose that a certain amount of ritual ever attends the administration of the warning demanded by the Code. And what if the accused had been a mere private, and if his probable service ran to one year instead of, perhaps, to a longer period. Unless, therefore, we are willing to hold that a reading of the Article in question — without more — shall be taken to break the chain, then it must bind us here. And I am unable to join in such a holding.
IY
In my view a rehearing is demanded.
United States v. Monge, 1 USCMA 95, 2 CMR 1; United States v. Gibson, 3 USCMA 746, 14 CMR 164; United States v. Volante, 4 USCMA 689, 16 CMR 263.