Phil Cave briefly covered CAAF’s January opinion in United States v. Morrissette, No. 11-0282/AR, 70 M.J. 431 (C.A.A.F. Jan. 24, 2012) (CAAFlog case page) (link to slip op.). The case involves an Army Private who participated in a gang initiation ceremony for another soldier in Germany in 2005. The initiate died from wounds sustained in the initiation. An investigation ensued, and the appellant refused to participate, was granted immunity, persisted in his refusal, and was eventually prosecuted for his involvement.
At trial, the appellant argued that the government was using his immunized statements. The trial military judge conducted a hearing pursuant to Kastigar v. United States, 406 U.S. 441 (1972), and determined that there was no impermissible use of immunized testimony. However, the trial military judge, out of “an abundance of caution,” disqualified the command from prosecuting the case. The case was then transferred to a new convening authority, prosecution team, and investigative team.
However, the new team did not strictly follow the rule in Kastigar to protect “against a future prosecution based on knowledge and sources of information obtained from the compelled testimony.” Kastigar, 406 U.S. at 454. There was some spillover of pre-immunity investigative materials to the post-immunity phase, the second prosecution team received a redacted copy of the record from the first prosecution that included some work product, and the second trial counsel discussed proposed charges with the officer who redacted (and had extensive familiarity with) the record of the first prosecution.
At the beginning of the second prosecution the defense again objected, claiming that the appellant’s immunized statements were being used against him. The military judge denied the objection, concluding that “[t]he immunized statements played no role in the decision to prosecute” and that the Government did not directly or indirectly use Appellant’s immunized statements. The appellant was then tried by a military judge sitting as a general court-martial, acquitted of the most-serious charges, convicted of various offenses including “participating in a gang initiation” and obstructing justice, and sentenced to a bad-conduct discharge and confinement for 42 months.
CAAF’s review was of the following granted issue:
Whether appellant’s fifth amendment right against self-incrimination was violated when he was prosecuted for offenses about which he had provided immunized statements.