The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity. R.C.M. 704 covers the issues of immunity, tempered by case law. Basically only the GCMCA can grant immunity, but . . . . Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing. See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

The military judge found that a promise of immunity was made to the appellant by a person the appellant reasonably believed had the authority to make such a promise. Nonetheless, the military judge also ruled that the trial defense counsel’s representation was not so deficient as to overcome the presumption of her competency.

The Dubay judge had found that the appellant did not detrimentally rely on his sergeant major’s offer of immunity. See generally, United States v. Churnovic, 22 M.J. 401 (CMA 1986), for a discussion of the de facto immunity concept. In Churnovic the court had this point.

On several occasions, this Court has rejected claims that prosecution was barred by an assurance given the accused that he would not be prosecuted. For example, in United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960), a squadron commander’s promise of immunity was held not to bind a convening authority, who neither knew of it nor authorized it. Likewise, in United States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955), the promise of a subordinate did not preclude a commander from instituting prosecution. However, if an official authorized expressly or implicitly by the convening authority has promised a suspect that, in return for certain disclosures, he would not be prosecuted, we have not hesitated to enforce that promise. Thus, in Cooke v. Orser, 12 M.J. 335 (C.M.A.1982), a promise of immunity made by the staff judge advocate of the commander exercising general court-martial jurisdiction precluded prosecution of suspected espionage. Likewise, in United States v. Brown, 13 M.J. 253 (C.M.A.1982), this Court enforced an informal agreement that if the accused gave good information about drug activity, the convening authority would grant him some form of relief. There, the staff judge advocate had made the agreement; and he had been entrusted by the convening authority with that responsibility. Our conclusion was that the Government must abide by an agreement on which an accused has reasonably relied to his detriment.

In Cunningham v. Gilevich, 36 M.J. 94, 100-01 (C.M.A. 1992), the court recognized that it had applied some type of de facto immunity since Cooke, but found that the petitioners in that case had not established that the officer who offered the immunity had done so with apparent authority. In Samples v. Vest, 38 M.J. 482, 486-87 (C.M.A. 1994) the court again recognized the concept of de facto immunity, but held it was not applicable where the appellant had not shown that he had been misled.

United States v. McKeel, 63 M.J. 81, 87 (C.A.A.F. 2006), cert. denied, McKeel v. United States, 549 U.S. 1019 (2006). Interestingly McKeel was cited in Call v. Polk, 454 F. Supp. 2d 475 (W.D. NC 2006), a non-military habeas case.

The NMCCA found a “substantial basis to question the voluntariness of the appellant’s pleas.”

It appears the defense counsel did investigate the existence of an agreement

and confirmed the existence of an agreement from both the sergeant major and the battalion legal officer, but she could not ascertain the actual terms of the agreement. The sergeant major told Capt D the appellant was only provided immunity for the 1 February 2008 suspected marijuana use and possession of the false ID; the legal officer had no recollection of the terms of the agreement.6 Capt D also learned from the sergeant major that he shredded the agreement before he deployed to Iraq.

Subsequently the defense counsel

informed the appellant of what she had learned regarding the immunity agreement and advised him it would be difficult to prove its actual terms.

Providency went ahead and the usual colloquy ensued about any other agreements.

At the DuBay hearing, the appellant explained why he told the military judge there were no other agreements. He testified that on the day of trial, he asked his trial defense counsel if he should tell the judge about the immunity agreement and she advised him not to, because doing so would most likely result in his returning to the brig for “another four month[s]” or a “really long time” while the issue was further litigated and that he probably would lose. . . . When [the defense counsel] later testified, no one asked her if the appellant’s recollection of her advice was accurate, she only testified generically that she advised her client that proving the terms of the agreement would be difficult, and that ultimately he chose to accept the pretrial agreement rather than pursue any relief under the immunity agreement. She also testified that she prepared the appellant for his guilty pleas on the day of trial, but could not specifically remember what they discussed.

NMCCA takes issue with various inconsistencies with the defense counsel’s notes, knowledge of events before trial, what was testified to at the Dubay hearing, and facts adduced in the providency enquiry.

After trial the defense counsel submitted a clemency request which

specifically referenced the immunity agreement: “As stated in the enclosure, Pvt Sagona had an understanding that he would not be charged with future misconduct for drug abuse after he agreed to give information on Marines who were smoking marijuana on restriction.

Here is the nub of NMCCA’s conclusions and reasons for setting aside the findings and sentence.

The existence of the immunity agreement created a potential legal basis for the appellant to seek significant relief, had the issue been litigated at trial. The record is unclear, but it leaves an impression that the appellant’s attorney presented one of two options regarding the immunity agreement: 1) pretend the agreement never existed and get out of jail immediately pursuant to the pretrial agreement, or 2) endure a lengthy and undetermined period of confinement before he could litigate the issues presented by the immunity agreement. If, at the time of his pleas, the appellant had disclosed the existence of the agreement to the military judge, then the existence of the agreement would not necessarily have hindered the military judge from accepting the pleas as voluntary, so long as the military judge could ascertain that the appellant voluntarily waived any potential relief stemming from the immunity agreement in exchange for the protections offered in sentence limitation portion of the pretrial agreement. On the other hand, if the appellant’s decision not to pursue potential relief was influenced by some form of coercion or duress, i.e., protracted and unnecessary imprisonment, then we cannot say that his pleas were truly voluntary. Had this experienced trial judge [LtCol Robinson] received full disclosure on the record of all pertinent facts regarding the appellant’s decision, we have no doubt that he would have been the singularly most qualified person to determine the voluntariness of the appellant’s guilty pleas. Regrettably, the military judge was prevented from doing so due to the misleading information provided by the appellant and his trial defense counsel.

Interestingly the NMCCA concludes, in a footnote, that the trial counsel was unaware of all of this! How can this be? Was the issue never discussed during pretrial negotiations? Did the trial counsel not talk with the command “legal officer?” Was there a term in the PTA to waive all waivable motions? Did that come up at trial? Also, what happened in the SJA shop when they read the clemency petition and read it in conjunction with the verbatim record of trial?

A de facto promise of immunity does not automatically bar prosecution. There is a fact evaluation. In some situations a lesser remedy, such as exclusion of statements and evidence may be applied.

(Jab: had this appellant received a sub-jurisdictional punishment we are unlikely to have heard of this court-martial under the UCMJ.)

In this case the appellate courts ordered a DuBay hearing. During that hearing the prior military judge testified as to his rationale for various decisions at trial. Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error. On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.

On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.

As a result of this new review, ACCA could not find harmless error and set aside Charge I. Of course this required then a sentence reassessment. The initial sentence – now served – was RIR to E1, 11 months confinement, and a BCD. After reconsideration the court found that appellant would have been sentenced to at least RIR to E1, one month confinement, and a BCD.

United States v. Maharrey, post-trial delay case.

United States v. Thornton. Appellant raises ineffective assistance of counsel (IAC) and sufficiency of the evidence. The findings and sentence are set-aside based on the IAC. The IAC relates to several issues: failure to properly advise on forum; failure to prepare appellant to testify; failure to cross-examine some witnesses. A DuBay (United States v. DuBay, 37 C.M.R. 411 (1986)) hearing was ordered. The military judge found several issues of IAC. The DuBay judge did not agree with all the allegations of IAC.

The DuBay judge opined that the trial defense counsel made “two separate clusters of decisions that constitute ineffective assistance of counsel.” The first cluster relates generally to counsel‟s failure to timely file a motion pursuant to MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). The DuBay judge opined that the trial defense counsel was ineffective when he failed to take the steps necessary to develop, preserve, and present this defense theory at trial. Id. We agree. We acknowledge that the trial defense counsel faced an uphill battle in terms of gathering information. He requested both TG and her mother to testify at the Article 32, UCMJ, hearing. Both refused. Their statements to NCIS were included in the Article 32 record. Thereafter, both TG and her mother steadfastly refused to speak with the trial defense counsel at any time leading up to trial with the exception of a five-minute interview with TG‟s mother at the beginning of trial, which was swiftly terminated by the witness. In response, the trial defense counsel never requested a deposition of either TG or her mother under RULE FOR COURTS-MARTIAL 702, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). The discussion under R.C.M. 702(c)(3)(A) articulates several “exceptional circumstances” under which a request for a deposition of a witness “unavailability of an essential witness at an Article 32 hearing.” Further, the trial defense counsel failed to formally request an opportunity to interview either TG or her mother prior to or following their direct examination by the Government. The trial defense counsel‟s testimony at the DuBay hearing that he “got all of the evidence … we wanted,” shows a fundamental lack of comprehension of what was needed to properly present the defense theory of the case. The second cluster of decisions identified by the DuBay judge as ineffective centered on the appellant‟s failure to testify. In essence, the DuBay judge held that the appellant was unable to testify at trial due to the trial defense counsel‟s failure to prepare the appellant to take the stand in the event he needed to do so. While we agree that the trial defense counsel‟s failure to actively prepare the appellant to testify and for cross-examination was far less than optimal, we do not agree that counsel‟s stated tactical desire to avoid having the appellant appear “prepared” was so far outside the norm as to be objectively unreasonable. We make this determination fully cognizant of the fact that the trial defense team did conduct at least some question/answer preparation with the appellant‟s wife on the eve of trial.