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.

10 Responses to “AFCCA Grants Another Article 62”

  1. anon says:

    To play devil’s advocate, suppose the CA grants immunity, the trial counsel hands the accused the grant of immunity who then proceeds to put it in his pocket without reading or understanding it, and then answers questions. Is the burden on the accused to demonstrate he responded based upon the grant of immunity, must the accused rely on the document to ? I see this as no different than a self-executing document . . . the testimonial immunity was effective at the time the CA signed the document.

  2. stewie says:

    I’d guess it’s like de facto immunity, the key is what the accused believed/knew at the time he made his statement.

  3. Cheap Seats says:

    Wow, what a waste of time and money for a single spec drug pop with nothing to corroborate but the testimony of a fellow druggie. I wish my service had that kind of cash and time to waste. Nice job, Government! I bet that if you get a conviction then you get, at worst, an Article 15 punishment.

    That being said, great legal issue for a 62 appeal as I see it could be a big deal in a bigger case. I have to ask the AF folks, is this a reported (for precedent) case?

  4. Terminal Velocity says:

    Anon, I believe “self-executing” is pushing it too far. A grant of immunity is accompanied with an order to testify/cooperate with the Gov. It would seem that immunity does take hold until the individual is ordered to incrimnate himself. If the suspect is unaware of the order to testify and waives his 31b/Miranda rights and incriminates himself, how is the 5th Amendment violated? In a 4th Amendment context, law enforcement agents often will ask for consent to search even if they already have a search warrant/authorization. So long as the consenting party has no knowledge of the search authorization (and thus is not consenting b/c entry is already a fait accompli), the voluntariness of the consent is not undermined simply because the cop has an unserved warrant for entry.

  5. Phil Cave says:

    I’m inclined to agree with the trial judge on an ethical, fairness, and is it right basis.

    [Initially] “[t]he appellee himself was not under suspicion of criminal activity. . . . . The paralegal told the appellee that he would probably have to testify at A1C JF’s trial, that he should be available for more interviews by members of the legal office, and that he should be honest and not hold anything back.”

    Fine so far. Not unreasonable actions. But then the prosecution gets information that makes appellee a suspect who apparently will need a grant.

    So, “The trial counsel . . was concerned . . . he also wanted to preserve the government’s ability to prosecute the appellee.” (A potential motivation to colour his dealings with the witness?)

    But, OK, fine so far.

    “At the beginning of the interview, the trial counsel identified himself to the appellee as a prosecutor in the A1C JF case. After briefly exchanging pleasantries (would this not be step two out of most OSI interrogation manuals. Bonding after having the person escorted there and establishing some tension.) and briefly touching upon the appellee’s knowledge and relationship with A1C JF (classic misdirection?, that ‘we are not after you.’), the trial counsel informed the appellee that he had knowledge of the appellee’s own cocaine use and was required to read him his rights. (Sure, sorry, this is some technicality, just a formality, keep in mind we aren’t after you.)” Is this not the impression conveyed and intended to be conveyed?

    And the appellee bought it, isn’t that sort of what the trial judge implies if she’s ruling on the basis of fairness?

    “[Appellee] also told the trial counsel he did not wish to consult a lawyer because he didn’t think one was necessary because the interview was about the A1C JF case.” (At which point trial counsel said, to clarify, well actually no. We are after JF, but we want to go after you afterwards if we can?)

    Mission accomplished? Put an OSI, CID, or NCIS agent in the role, and there you go. As TV notes, that is a possible approach that could have been taken in this case. It may in fact be OK for law enforcement personnel to act this way. (Although I suppose appellee’d be more likely to clam up if OSI did the interview.) But, is it OK for a lawyer? AFRPR 3.4, 3.8 arguably don’t explicitly cover this situation. But I wonder if 4.3 does?

    So that’s my question, and one apparently reviewed by the trial judge although not from that perspective. If, and I say if, there is an element of unethical behavior in the lawyer’s actions, does that, could that, support the defense argument and the trial judge’s findings? Is this the right and proper behavior we expect of a lawyer toward someone they intend prosecuting. Perhaps “technically legal” to use the trial judge’s thinking.

  6. WestCoastDefense says:

    To piggyback off of Phil Cave at 11:21 is this trial counsel still on the case?(!) Sure sounds to me like he or she should be congratulated on having turned themselves into a factual witness in the case by their actions and may now be needed to testify on a point at issue rather than prosecute.

  7. stewie says:

    Phil, I think you could have a point about the ethical behavior of the TC involved (at least to the level of it being something to think about) but let’s assume you are correct and there is some violation of the ethical rules. Still not sure that gives any relief under the law to the accused in this case.

    It’s not the way I’d operate as government counsel. I mean if I am truly wanting this guy to help me out, I’m going to be above board about it, either he gets prosecuted normally but gets lighter punishment because he cooperates, or he gets immunity and no punishment and cooperates…the need to basically use him with apparently no benefit for his cooperation is not apparent to me.

    However, not sure “t’aint fair” helps him at the end of the day. We aren’t courts of equity *although I personally think we should be*

  8. Phil Cave says:

    Stewie: I agree that there are plenty of cases and situations where you can have an ethical issue/government misconduct but it doesn’t rise to the level of something also warranting judicial relief. In those cases they judge would say take it to the bar. At some point though it does seem to me that a government misconduct argument based on an underlying ethical concern might also be enough to get relief on a particular issue. And I agree, without more specific research, that is not clear here. Going the honorable conduct route is not, IMHO, a equitable resolution, merely an acknowledgement that TC’s acting badly can be a basis for relief when in the process they take advantage of a witness or lay-person or something who is unrepresented.

  9. anon says:

    TV, you may be right though I’ve never seen a court hold that an accused has to demonstrate that they relied on a grant of immunity. As for the language of the grant of immunity I think an argument can be made that the grant of immunity “and” order to testify(cooperate) are independent clauses; therefore, the grant of immunity occurred when signed by the CA regardless of whether the accused relied on the document.

  10. Dew_Process says:

    Look at this from another angle, the GCM/CA (a) grants immunity, and (b) Orders Hathorne to testify. The TC, a subordinate of the GCM/CA and thus his agent, takes it upon himself to not effectuate the CA’s decision and direction, but rather does his own thing in a sly attempt – not to do justice, but to improve the odds of convicting Hathorne – and intentionally does not disclose the Immunity/Order which the CA clearly intended to be delivered to Hathorne. I’d be reading the TC his Art. 31 rights for Dereliction of Duty.

    From an ethical perspective, the TC’s got a problem under Rule 3.4(a); and 3.8(c), which states that a prosecutor SHALL “not seek to obtain from an unrepresented accused a waiver of important pretrial rights. . . .”

    Another case of a lack of adult supervision.