(concurring in the result):
Contrary to the views expressed by the Chief Judge, there is little doubt in my mind that had Airman Whalen been granted immunity, he would have explicitly testified that he, himself, had committed all the offenses with which the accused was charged and that the accused had no knowledge, whatsoever, regarding his commission of any of these offenses. Such an “in-court,” totally exonerating confession, was: (1) clearly implied by the pretrial information that the accused’s counsel provided the convening authority in support of the instant immunity request; (2) supported by Whalen’s piecemeal admissions to Patrick Clancy which Clancy testified to at trial; and (3) confirmed by Whalen’s posttrial affidavit which he penned following the de facto immunity that resulted from his discharge from the service.
*758Nevertheless, I concur with the Chief Judge’s conclusion that the defense’s request to immunize Airman Whalen in exchange for his testimony was properly denied.
Stated quite simply, a contrary holding would likely render future convictions for crimes committed in the absence of eyewitnesses, virtually impossible. Any sole offender, A, would have only to find an individual, B, willing to confess to A’s crime after being granted immunity in order to plant a reasonable doubt as to A’s commission of the crime in a jury’s mind. A would be forever acquitted of the offense (double jeopardy) and B would be forever immune from punishment for the offense (particularly, when B actually never committed the crime). Assuming B never changes his story in the future, he is also immunized from any future perjury conviction, as the two witnesses necessary for such a conviction would not exist.
Since, in my opinion, it would be the height of a naivete to presume that such an obvious invitation to avoid criminal conviction for offenses might be ignored by criminal elements within our community, any contrary holding, regardless of its theoretical appeal, would, absent substantial changes in our basic perceptions of criminal justice, likely sound the pragmatic death knell to the effectiveness of our criminal justice system. It is difficult to imagine a stronger governmental interest against granting immunity. I rest my decision upon this governmental interest.
The findings and the sentence in this case should be affirmed.