Everyone should stop what he or she is doing and read this en banc published decision NMCCA released today. United States v. Hutchins, __ M.J. __, No. NMCCA 200800393 (N-M. Ct. Crim. App. Apr. 22, 2010). The opinion excoriates basically everyone connected to the trial for the manner in which one of the defense counsel exited the case upon the approach of his EAS. NMCCA set aside the findings, including an unpremeditated murder conviction, and the sentence due to the manner in which the accused’s attorney-client relationship with the counsel was severed. Senior Judge Geiser wrote for the court. Senior Judge Maksym, joined by Judge Beal, agreed with the majority opinion but wrote separately to suggest that consideration be given to taking professional responsibility disciplinary action against the now-civilian defense counsel. Senior Judge Booker agreed with the outcome, but separately concurred on a different legal basis. And, finally, Judge Price agreed that the sentence had to be set aside due to the error but found it harmless beyond a reasonable doubt for findings purposes.
Here’s the bottom line:
[W]e conclude that the military judge erred when he permitted proceedings to continue after Capt Bass ceased representation of the appellant without either the appellant’s knowing release or a finding of good cause by the military judge. Under the specific facts of this case, we find that any attempt to assess specific prejudice arising from Capt Bass’ unauthorized departure would be speculative. We will, therefore, presume prejudice. We do not reach the issue of whether another set of facts and circumstances would permit a non-speculative assessment of prejudice. We will set aside the findings and sentence in our decretal paragraph and return the record to the Judge Advocate General with a rehearing authorized.
Id., slip op. at 2-3.
This was one of the Hamdaniyah kidnap/murder cases. In June 2006, Capt Bass was detailed to the defense team, which also included a Marine Corps lieutenant colonel and a civilian defense counsel. Capt Bass apparently entered an appearance and participated in a number of Article 39(a) sessions. But a couple of months before the case actually went to trial, Capt Bass went on terminal leave on 25 May 2007. He was released from active duty on 1 July 2007. The case was actually tried 1-3 August 2007.
There was an Article 39(a) session on 11 June 2007. Capt Bass, who had begun terminal leave, wasn’t there, but he “had not been properly released from representing the appellant.” Id., slip op. at 3. The military judge, LtCol Meeks, stated on the record that he had been informed Capt Bass had reached his EAS and been discharged. The military judge also noted that Capt Bass had been replaced by a second lieutenant colonel defense counsel. One of the military defense counsel agreed and stated that Capt Bass had been “relieved of representation of Sergeant Hutchins.” Id. But Capt Bass hadn’t reached his EAS; rather, he was still in a terminal leave status at the time. The military judge then advised Sgt Hutchins that he had the right to [be represented by] all of your detailed defense counsel including Captain Bass; however, once Captain Bass leaves active duty, there’s no way that the Marine Corps can keep him on as your detailed defense counsel.” Sgt Hutchins answered affirmatively that he understood, that he had discussed the matter with his counsel, and that he had no objection to proceeding.
At a DuBay hearing, the military judge found that “[a]lthough Captain Bass had submitted his resignation request in August 2006, he did not inform the appellant that he would be leaving active duty until early May 2007.” Id., slip op. at 5. The DuBay judge also found that “[a]fter this early May 2007 meeting between Captain Bass and the appellant, the appellant never saw Captain Bass again.” Id. Additionally, Sgt Hutchins “was never advised that he could request that Captain Bass be extended on active duty to complete the appellant’s trial.” Id. Nor did Sgt Hutchins sign any document releasing Capt Bass. Id. The DuBay judge also found that “Captain Bass never ‘requested’ that the appellant release him as his counsel; instead, Captain Bass presented the situation to the appellant as one in which there was no other option to remain on active duty.” Id. Nor was Sgt Hutchins ever “informed of the possibility of objection ot Captain Bass leaving the case.” Id. The DuBay judge found that the remaining defense counsel were operating under the assumption that nothing could be done to stop Capt Bass from leaving active duty, but the Regional Defense Counsel knew of cases in which defense counsel had asked that their EAS be pushed back to be allowed to finish a case and some of those requests were granted and some denied.
The DuBay judge concluded, and NMCCA agreed, that “the military judge effectively severed the attorney-client relationship between Capt Basss and the appellant.” Id., slip op. at 7. NMCCA rejected the argument that Sgt Hutchins consented to the severance of the attorney-client relationship, concluding that Sgt Hutchins merely acquiesced to a fait accompli. NMCCA construed Sgt Hutchins’ “uninformed acquiescence to Capt Bass’s departure” as “a constructive objection to the loss of” his statutory and regulatory right to counsel.
NMCCA then held that good cause didn’t exist to sever the relationship, expressly rejecting Capt Bass’s EAS as a basis for severance under the facts of this case. The court reasoned:
In the instant case there existed no truly extraordinary circumstance which rendered impossible the continuation of the long-established relationship between the appellant and Capt Bass. Certainly this was true during the period prior to 1 July 2007, when Capt Bass was on terminal leave. Terminal leave and an attorney’s end of active service is a normal occurrence of military life that can be planned for. EAS, standing alone, cannot be used as a basis to sever an existing attorney-client relationship in this case after nearly a year of preparatory work and mere weeks before commencement of a general court-martial for murder.
Id., slip op. at 10.
NMCCA characterized the defense counsel’s failure to properly advise the client concerning the potential severance of his attorney-client relationship with Capt Bass and the military judge’s erroneous discussion of the issue with Sgt Hutchins as “something of a perfecdt storm.” Id. NMCCA reasoned that “the military judge’s statement suggesting that the appellant was faced with a fait accompli provided a judicial imprimatur to the appellant’s misunderstanding that there was no way for appellant to effectively object to Capt Bass’ departure.” Id., slip op. at 11.
Having found error caused jointly by the trial defense counesl and the military judge, NMCCA wrestled with the proper prejudice test. The court ultimately concluded that “any attempt to assess prejudice would be speculative.” Id., slip op. at 12-13. The court therefore presumed prejudice and set aside both the findings and the sentence while authorizing a rehearing. Id., slip op. at 13.
The majority dropped a footnote stating, “We leave the ethical implications of Capt Bass’ conduct to his state bar authority and the Navy Rules Counsel.” Id., slip op. at 10 n.10. While joining in the majority’s rationale, Senior Judge Maksym, joined by Judge Beal, wrote separately to suggest a discinplinary investigation. He wrote that “it is appropriate for this court to call upon the Judge Advocate General to initiate such ethical review as he thinks necessary through the Rules Counsel to determine what, if any, administrative actions should be taken relative to this attorney.” Id., slip op. at 14-15 (Maksym, S.J., concurring).
Senior Judge Booker concurred separately, arguing that the failure to follow proper procedures to release Capt Bass from his representation of Sgt Hutchins should be considered structural error warranting reversal wtihout regard to prejudice.
Judge Price concurred in part and dissented in part. While agreeing that there was error and that sentence relief was appropriate for that error, he concluded that the error was harmless beyond a reasonable doubt for findings purposes.
Compare this case to the Coast Guard Court’s ruling in United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), petition denied, __ M.J. ___, No. 10-0199/CG (C.A.A.F. Apr. 9, 2010), that a defense counsel’s six-month deployment to Iraq justified severance of the attorney-client relationship.
What are the Vegas odds on whether the Judge Advocate General of the Navy will certify Hutchins to CAAF?