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).