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.

For those who haven’t been watching this case, Judge Matthews The Greatest provided a good background in this post:

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.

Top that.

Case Links:
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?

11 Responses to “Opinion Analysis: Was Hathorne the best case of the term?”

  1. NW says:

    Maybe it’s different in the USMC, but 64 and 69 review are not “real and meaningful” in the USAF. 100% guarantee Hathorne gets no relief through 69 process and 0% chance of JAG referral to AFCCA. And what would be thepointy? AFCCA already ruled that there was no error. If CAAF wanted to punt, why even grant review. 

  2. Zachary Spilman says:


    If you’re aware of a case where the accused/defense (1) submitted allegations of legal error that were ignored or summarily resolved by the Art. 64 reviewing officer and (2) requested review by the JAG that was then conducted in a summary and indifferent manner, and (3) has a (at least somewhat) meritorious claim, then I think there are a lot of people (starting with the two who read this blog) who might like a story like that.


    Tom, wait a minute. I’m talking about a cop — that’s mixed up in drugs. I’m talking about ah – ah – a dishonest cop — a crooked cop who got mixed up in the rackets and got what was coming to him. That’s a terrific story. And we have newspaper people on the payroll, don’t we, Tom?

    [Hagen nods in the affirmative]

    And they might like a story like that.


    They might, they just might…

    MICHAEL (to Sonny)

    It’s not personal, Sonny. It’s strictly business.

  3. Michael A says:

    What if the parties here were reversed?  What if the government lost at the CCA, and both the CCA and CAAF refused stay the case.  Trial continues, accused is acquitted, and then TJAG certifies the case for review (I’m not sure if it matters if certification happens before or after acquittal).  

    Could CAAF hear that appeal? 

  4. Dew_Process says:

    Whether or not the TC had a legal duty to promptly relay the GCM/CA’s Immunity grant is one thing (and I think they do, but that’s now apparently a moot point), but I have some significant ethical concerns about the conduct of the Trial Counsel.

    Rule 3.4(a), AF Rules of Professional Conduct states in pertinent part:

    A lawyer shall not:
           (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.

    Rule 3.8, dealing with the “special responsibilities” of Trial Counsel provides in relevant part:

    The trial counsel in a criminal case shall:    

           (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a pretrial investigation under Article 32, UCMJ;

    Here, TC’s conduct was blatant and intentional, and I would hope his DC file a complaint with the TC’s State ethic’s body!  It’s what gives this case its odious quality.

  5. Gene Fidell says:

    An excellent post, Capt Spilman. This is really an interesting case, and it’s too bad the Court of Appeals did not write more extensively. Still, the per curiam and the colloquy during oral argument about whether there is such a thing as a subjurisdictional court-martial are useful reminders that after the 1989 UCMJ amendments, a case that does not meet the statutory threshold for mandatory CCA review could become the subject of CAAF review through TJAG referral to the CCA. Therein lies what may be Hathorne‘s most important lesson: any court-martial — including summary courts — is a potential CAAF case. See CAAF Rules Guide 22-23 (13th ed. 2010). While useful shorthand (as Dwight has pointed out), the term “subjurisdictional” (see also Daniel J. Wacker’s 1975 article in Harv. Civ. Rgts.–Civ. Lib. L. Rev. on “unreviewable” courts-martial) has become misleading because cases that do not fall within the CCAs’ mandatory jurisdiction are nonetheless not only nonjudicially reviewable by the CA and TJAG, but potentially judicially reviewable by the CCA and CAAF (and for that matter, the Supreme Court). Counsel in every variety of court-martial, in addition to being alert before and during trial to issues that warrant a pretrial or midstream extraordinary writ, should therefore also give serious attention to seeking to persuade the TJAG to make a CCA referral in the event of prejudicial error. As Chief Justice Warren wrote in Sibron v. New York, 392 U.S. 40, 52 (1968), “[m]any deep and abiding constitutional problems are encountered primarily at a level of “low visibility” in the criminal process – in the context of prosecutions for “minor” offenses which carry only short sentences,” citing Thompson v. City of Louisville, 362 U.S. 199 (1960). This is equally true of nonconstitutional (suppose we not call them “subconstitutional”) issues.

  6. Gene Fidell says:

    Footnote to my comment above. I should have mentioned, as Capt Spilman does, review by a JA IAW Art. 64.

  7. Christopher Mathews says:

    D_P, as I understand the timeline, A1C Hathorne was not “an accused” at the time of his questioning by the trial counsel, nor was he a party to the court-martial in which he was questioned as a witness. 

    I understand that your concerns with the case go more to the overall question of fairness, but I don’t think the rules you cited are apposite.

  8. RY says:


    I agree this was an interesting post but moreso on theory and less so on practice.  I’ve seen and filed some strong legal errors for Art 64 review and IMHO, it’s a rubber stamp, at least in the AF.  Similarly, when I was at JAJA we looked at the process and stats for Art 69b appeals, particularly since we’d seen a few litigated cases where the member was convicted of a registerable sex offense but received a “subjurisdictional” sentence.  We wanted to push for TJAG to send more cases to the CCA.  What I learned is that the process is largely a rubber stamp and we could not find the last time the Art 69b process provided any relief going back many years.  I’d love for Art 64 and Art 69b to be meaningful relief.  In reality, however, at least in the AF, they have proven meaningless.  I still file legal errors and Art 69b briefs when appropriate but fully expecting they’ll be quickly disregarded as historically proven. 

  9. Dew_Process says:

    @RY – unless you went back to the late 1970’s, at least in the AF you’re going to have to search long and hard for any meaningful relief under Art. 69(b).  In FY 1977 I believe, something like 30% of the Special Court-Martial convictions out of PACAF got some sort of relief via Art. 69(b), applications — primarily because of very inexperienced SJA’s and the lack of experienced trial counsel.  Those that had considerable experience during the Vietnam era, either were promoted out of those jobs or got out and went into civilian practice.  Conversely, some of those with considerable military justice experience ended up in JAJ doing Art. 69(b), reviews.

    As I’m typing, I’m looking at an “opinion” in an Art. 69(b) case, U.S. v. Sgt Clarence Tarry, dated 29 SEP 77, litigated by a good friend of mine, where TJAG reversed and dismissed an attempted black marketing case because the Spec failed to state an offense.  I kept a copy of that because at the time black marketing cases took up about half of our monthly dockets, and we used Tarry to the defense’s advantage.

    But, it was an era where JAG’s careers (at least in the AF) wouldn’t be affected by pointing out that a Military Judge blew something or that the GCM/SJA’s post trial review was defective, etc.  The UCMJ worked as intended back then – not as a “rubber stamp” as you note.  But, at least in the AF the term “rubber stamp” was not a figure of speech.  If Art. 64 or 69(b), relief was denied, they had this large rubber stamp that said something to the effect:  “Upon review under (Art. 64)(Art 69) UCMJ, no relief is warranted.” which was stamped on the CMO, dated and signed and the inapplicable article lined out.

  10. Charlie Gittins says:

    I’ve written and filed my share of post-trial errors and Article 69(b) appeals.  Despite strong arguments and provable error, the cases were “rubber stamped” and affirmed.  

    I recently had a MJ file an ethics complaint on me without notifying me or my client that he was doing so.  He had the Trial Counsel do the paperwork; TC didn’t notify me either.  My officer client then chose military judge alone forum without the MJ disclosing that he had filed the complaint with the assistance of the prosecutor.  My client finds out that the MJ didn’t disclose his actions before asking my client to choose forum and, he is smart enough to do some research on his own, to find out that such non-disclosure is considered an ethical violation of its own in the civilian jurisdictions that have considered the issue.   Petition for New Trial due to fraud on the court-martial denied by Navy JAG.  Article 64 rubber stamp approved after the error was raised in post-trial submissions.  

    The ethics complaint against me was dismissed after I responded to it, but my client views every ruling made by the military judge against him at trial through the prism of the undisclosed evidence of bias.  He is considering an ethics complaint of his own against the MJ in the Judge’s state jurisdiction.  I hope he does it.    

  11. Zachary Spilman says:

    I reviewed over 300 courts-martial (mostly summary courts) under Article 64 in the past nine months. Of those, I received allegations of legal error in not a single case. That’s not to say I didn’t find error; I found lots of errors and wrote a great many “corrective action letters.” Numerous convictions, most entered in accordance with pleas, were set-aside. The convening authorities were driven before me, and I heard the lamentations of their adjutants. But I refuse to believe that this makes me special. I was a guy in a uniform doing a job, just like so many others.