CAAF’s order dismissing the Article 62 case of United States v. Hathorne, No. 12-6002/AF, 71 M.J. 200 (C.A.A.F. Apr. 26, 2012) (CAAFlog case page) (link to order), on ripeness grounds, seems like an ignominious end to an unusually interesting case, but the reason for the dismissal betrays that this case isn’t over, and that it shouldn’t be overlooked.
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.
The trial judge dismissed the charge based on the trial counsel’s withholding of the immunity, the government appealed, the CCA reversed, and everyone denied a stay pending the accused’s petition to CAAF. Trial proceeded, resulting in a conviction, a “subjurisdictional” sentence, and a “rubber stamp” Article 64 review. CAAF then granted review of the immunity issue, and of an issue asking if the court had jurisdiction to hear an Article 62 (interlocutory) appeal once trial is concluded.
Two things happened at oral argument that cause me to believe that this case is much more important than it appears. The first was discussed a bit in Col Sullivan’s post, A question of etymology:
Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from? Does it come from our case law? Do you agree that there’s such a word?” Maj Kerr responded, “It’s been used frequently, Your Honor.” Following some laughter, the following exchange occurred:
Judge Effron: Did you find it in any of our case law?
Maj Kerr: No, Your Honor.
Judge Effron: Did you find it in any dictionary?
Maj Kerr: No, Your Honor.
There was more to the exchange, which began at 10:40 of the argument audio and continued for about three minutes (I’ve uploaded an excerpt of just this section in MP3 format). Senior Judge Effron was discussing whether this appeal was ripe, due to the fact that the Judge Advocate General has the authority, under Article 69(d)(1), to refer the case to the CCA for review under Article 66. The Senior Judge wasn’t questioning the origin of the term “subjurisdictional,” he was questioning the legitimacy.
The avenues of review for an approved special court-martial sentence are either review by a CCA under Article 66 (punitive discharge or confinement for 1 year), or review by a judge advocate under Article 64 (all other cases). When the review is under Article 64, the Judge Advocate General can take further corrective action, under Article 69, on petition of the accused or sua sponte. That action can include referral to a CCA for review under Article 66. Graphically it looks like this:
Of course, there are few guarantees in this appellate process, and referrals from a JAG to a CCA are rare, just as are reviews by the Supreme Court (or even by CAAF, relatively speaking). But there is still the opportunity for an impressive six levels of appellate review of a special court-martial (compared to only two levels of a typical federal criminal conviction).
As an aside, those who cynically analogize certification by a JAG to a government appeal, or who think that the convening authority’s action and the judge advocate review aren’t appellate actions, are dead wrong. See United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (Stucky, J. concurring) (“A convening authority is not required to correct legal errors … But where he does so, his action must be guided by the same rules applicable to appellate authorities”); United States v. Mitchell, 39 M.J. 131, 139 (C.M.A. 1994) (“It is at least arguable that [The Judge Advocate General’s] office stands entirely apart from either party to the case”); Article 64, UCMJ (“The judge advocate’s review shall be in writing and shall contain … A response to each allegation of error made in writing by the accused”). Few guarantees, but these are serious reviews of the record and significant opportunities to litigate errors.
The order dismissing Hathorne recognized that, because the trial is complete, CAAF’s jurisdiction to review the case is contingent on the CCA first reviewing the case under Article 66 after referral by the JAG under Article 69(d) (the CCA’s review under these circumstances is permissive). Senior Judge Effron’s comments about the term “subjurisdictional,” followed by the court’s dismissal of the appeal as not ripe, make it clear that CAAF doesn’t believe there is such as thing as a “subjurisdictional” case. The court has jurisdiction to review any court-martial; there’s just different procedures to get there depending on the sentence.
Unfortunately, many military justice practitioners don’t put much faith in the Article 64 review process. For example, not long ago a trial defense counsel actually requested a punitive discharge at a special court-martial to “ensure appellate review” (that case ended predictably badly for the accused). This disdain for the corrective action powers of the convening authority, the judge advocate, and the Judge Advocate General, means that defense counsel miss many opportunities to get relief for their clients.
The second important thing that happened at the Hathorne oral argument goes to just this point.
A major component of the government’s position in this case is based on the fact that the appellant was unaware of the grant of immunity (because the trial counsel strategically withheld it), and therefore could not detrimentally rely upon it. However, the government’s counsel had this uncomfortable exchange with Judge Erdmann, beginning at 28:51 of the oral argument audio (MP3 excerpt here):
Judge Erdmann: On page 29 – I just want to get your impression of this – Capt [C] told the accused that he would be testifying at the trial, but that he would not read him his Article 31 rights at trial because his statements could not be used against him. That indicates to me that he’s telling him that when he testifies he’s not gonna – that he has some type of immunity. Now where does that come from?
Counsel: If I may-
Judge Erdmann: Yeah, page 29. It just seems to be a little inconsistent with the rest of the government’s positions here.
[ten second of silence]
Judge Erdmann: Does that not sound like some type of immunity? If he testifies, certainly.
[four seconds of silence]
Counsel: I can’t give you a good explanation for that sentence. It seems very inconsistent with the rest of the judge’s findings and conclusions. So I – I don’t have a good explanation for that sentence. I understand your question your honor, but I’m afraid I’m not able to explain that. It seems inconsistent with the rest of the ruling [inaudible] yes, your honor.
If the trial counsel gave the appellant a reason to believe that he had immunity, the entire posture of this case changes. Moreover, it was apparently overlooked by everyone except Judge Erdmann. If it’s true that the appellant had a reason to believe that he had immunity, he will likely get relief from the Judge Advocate General under Article 69, either through referral back to the CCA or through outright dismissal (if it’s true that he had a reason to believe he had immunity, it would be pretty embarrassing for the JAG to deny him any redress).
This makes Hathorne the source of two incredibly significant practice lessons. First, review under Articles 60, 64, and 69 are real, meaningful, and must not be overlooked. Second, there is no such thing as a “subjurisdictional” court-martial; CAAF can review any case in the ordinary course of appellate review.
• AFCCA’s opinion
• Blog post: AFCCA grants another Article 62
• Blog post: CAAF grant
• Appellant’s supplement to petition for grant of review
• Government’s answer
• Appellant’s brief
• Appellee’s (government) brief
• Blog Post: Argument preview
• Oral argument audio
• Blog post: A question of etymology
• CAAF order of dismissal
• Blog post: CAAF dismisses Hathorne appeal on ripeness grounds
• Blog post: Was Hathorne the best case of the term?