If a tree falls in the forest, but the trial counsel doesn’t inform the accused, does it make a sound?
In United States v. Hathorne, Misc. Dkt No. 2001-02 (AFCCA 4 Oct 2011) , the Air Force Court of Criminal Appeals granted yet another government appeal, holding that a convening authority’s order to speak subject to a grant of immunity does not mandate suppression of the immunee’s otherwise-admissible confession, if the confession was given without knowledge of the grant and order.
Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico. During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity. On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.
The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence. A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010. A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him. A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.
At trial, the military judge found that the trial counsel’s actions, while “technically … correct under the Constitution and Article 31,” were inconsistent with “the law and fundamental notions of fairness.” The grant of immunity was effective by its plain language when it was issued, the military judge ruled, and the government had not met its burden under Kastigar v. United States, 406 U.S. 441 (1972), of showing that its evidence against the accused was derived from a source wholly independent of the immunized statement. Accordingly, the judge ordered dismissal of the charge and its specification with prejudice.
The service court framed the trial judge’s order thusly:
The military judge found that from the moment the GCMCA signed the grant of testimonial immunity on 3 February 2011, the appellee’s statements were cloaked with immunity despite the fact that the appellee was unaware of the immunity and order, did not rely upon it, and after being read his Article 31 rights, waived his right against self-incrimination and confessed his use of cocaine to the trial counsel.
Against that backdrop, the CCA’s decision reversing the trial judge is not surprising. Because the accused had never asserted his right against self-incrimination prior to questioning by the trial counsel, the CCA held, there was no refusal for the grant and order to overcome, and because the accused did not rely on the grant and was unaware of the order, his confession was voluntary. The service court also concluded that the trial counsel’s decision to pocket the grant and order and to use them only if the accused refused to speak was within the trial counsel’s authority and not inconsistent with the convening authority’s intent — i.e., to overcome refusal and compel answers from the accused.