CAAF today granted review in an Article 62 case. Both the assigned issue — which conerns “hip pocket immunity” — and the specified issue — which concerns CAAF’s own jurisdiction — are unusually interesting.
The assigned issue: “Whether the Government counsel’s stategic withholding of the convening authority’s grant of immunity makes Appellant’s statement to Government counsel non-immunized.” United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Jan. 4, 2012) (order granting review).
The specified issue: “Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), this Court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?” Id.
AFCCA’s unpublished decision in the case is available here. United States v. Hathorne, Misc. Dkt. No. 2011-02 (A.F. Ct. Crim. App. Oct. 4, 2011).
The defense had filed a motion with CAAF to stay the trial proceedings while it considered the petition for review. But CAAF denied that motion on 1 November 2011. (That denial doesn’t seem to appear in the daily journal.) The case went to trial the following day. Airman First Class Hathorne was convicted of one specification of cocaine use. He received a sentence of confinement for 7 days, 30 days of hard labor without confinement, restriction for 30 days, and reduction to E-1.