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?

87 Responses to “Important NMCCA decision on terminating the attorney-client relationship”

  1. TG says:

    Fascinating. “A perfect storm”, to borrow the court’s words.

    This sort of mess happens all the time, however. There has to be a balance between cases and other needs of the service and people. For example, several years ago, a defense counsel was sent downrange IA on relatively short notice. It put a trial into a 6 month holding-pattern. There nearly was a crisis when the Military Judge suggested he was going to enter an order voiding the counsel’s IA orders and ordering him to return to the trial. Cooler heads prevailed (fortunately), but it still is a problem.

    This opinion, while interesting, seems to encourage military judges to issue orders of a type suggested above. Those sorts of orders seem to me to be ready-made to cause outcry from other parts of the service (e.g., BUPERS), who plan on manning strength, budgeting, etc. My recollection is that, once a RAD request is appoved, it generates lawful orders that REQUIRE separation by the final date. What happens if BUPERS declines to modify the order, or simply ignores the extension ordered by the Military Judge and cuts off the defense counsel’s pay (on purpose or by neglect – same difference), or takes similar action? Could this be considered overreaching by the Military Judge?

    I know I keep beating this drum, but we need to remember that real-world consequences have to be factored into legal decisions. Failure to do so will bring the legal system into disrepute and encourage outside interference – to the detriment of us all.

  2. Anonymous says:

    TG: All orders can be modified–nothing REQUIRES separation at a proposed date. HQ can always extend, and does so with regularity.

    And this case is are not talking about the movement of regular officers, rather it is of defense counsels, who have unique responsibilities. Any IA plan that is premised on forcibly severing A/C relationships is flawed, and makes a mockery of miljus.

    Thus, the “real world” needs to take into account that service as a defense counsel is not just service in another fungible billet which can be adjusted at a commander or personnel officer’s whim. Failure to do so will bring the legal system into disrepute and encourage outside interference – to the detriment of us all.

  3. Anonymous says:

    Pretty easy fix, request to be removed from the case through the military judge and/or your client.

    Why that wasn’t done here is criminally stupid.

  4. Anonymous says:

    So we are now going to have a rehearing? And will the accused have the good Capt Bass to represent him? I doubt it. So we will be right back where we are now. Great!!!!!!

  5. F. Ram says:

    Definitely not handled properly by the defense counsel, but I’m not so sure about NMCCA’s solution on the prejudice issue. I’d say this one gets certified.

  6. Anonymous says:

    CG’s Garcia opinion cited the Navy’s Hultgren opinion as the legal authority for its holding, although that case dealt with post-trial substitution of counsel. It then distinguished Bevaqua seemingly because the deployment was longer. Although his guilty plea wouldn’t necessarily waive the issue, it doesn’t exactly help his cause. Be that as it may, there now seems to be a “circuit” split which may up the odds that JAG certs.

  7. Anonymous says:

    “But Capt Bass hadn’t reached his EAS; rather, he was still in an appellate leave status at the time.”

    I believe that should read “terminal” vice “appellate” leave status.

  8. Bill C says:

    GAD did not even brief the issue. Overall, not a stellar day for Military Justice.

  9. JimmyMac says:

    Where was the Government? I know, 20-20 hindsight but this old TC was taught that whenever the DC team began to substitute players, you stepped up and demanded the Military Judge get a written document with the accused’s signature and make it an Appellate Exhibit. That is the lesson learned here. Let me repeat the old motto – “Trial Counsel’s ultimate responsibility is to protect the record.”

  10. Anonymous says:

    Can you repeat that in English?

  11. Anonymous says:

    Re: judges recommendations for referral to state bar and Navy TJAG (why not SJA to CMC) for admin action: assuming DC failed to explain extension option to client (affidavit from DC might clarify this), why are his co-counsel – who are senior in experience/rank – less culpable? Don’t they owe the same duty to the client?

  12. John O'Connor says:

    “Trial Counsel’s ultimate responsibility is to protect the record.”

    Truer words were never said.

  13. Atticus says:

    This case will be certified and the government will go with Judge Price’s analysis in his concurrence/dissent. He appears to be the only judge not coming off the top shelf. CAAF will send it back to NMCCA to test for prejudice and we’ll get another en banc opinion.

  14. Anonymous says:

    Never have I seen such a pompous and indulgent opinion as the concurrence by Judge Maksym.

  15. Atticus says:

    The guy was tiresome years ago.

  16. Late Bloomer says:

    I thought that the military defense bar had some sort of agreement/understanding with the ABA that DCs would remain in place for a minimum of 12 months. Does that not apply to those judge advocates who are less than 12 months from their EAS?

  17. D says:

    Does this also apply to appellate defense counsel? When are they relieved of representation?

  18. Anonymous says:

    I think D’s question is interesting and relates back to what model of representation the various appellate defense divisions are adhering to. In my time at Navy appellate defense, it seemed they liked to have it both ways: the relationship with the appellant was purely personal when it came to issues like organizational conflicts (e.g. How else could one office represent both Parker and Walker et al.?), but seemed to veer off to the “firm” model when it came to assignment/reassignment/transfer of counsel (We sent notices, but I don’t remember seeing anything about consent).

  19. Anonymous says:

    I realize everyone is shocked at the actions of the TDS counsel and supervisors (which is bad but I’d bet the facts did not play out as egregious as it looks in an opinion), however, the most shocking thing to me is the statements at trial by the military judge which are both wrong and illogical.

  20. Atticus says:

    How are detailed trial DC any different in our system than detailed ADC? All ADC do is file a motion for leave to withdraw as counsel when they transfer. It’s like being a legal aid or public defender; accused gets a replacement, which happened here. Somebody over at CCA (Geiser-past head of Code 13 and ethics/Maksym-always wanting to tell eveyone he knows more than them) got emotionally wrapped up in this; it was not even raised by the ADC, it was ordered by he Court; and they moved way too fast. The green judges dropped their packs in an all-Marine case. It smells of an ulterior motive like some of the vitriol in Foster.

  21. Anonymous says:

    Atticus: Given your posting history, I tend to think you would have affirmed Tom Robinson’s conviction.

  22. Another Dissenter says:

    Atticus nailed it! In a time of intense Congressional scrutiny on the military justice mission in the Navy and Marine Corps, including whether the Navy JAG should have more authority in the assignment of Marine Corps JAs, this opinion has the underpinnings of quasi-political and strategic motivation.

  23. Atticus says:

    I believe the term is boo-hoo.

  24. Anonymous says:

    You should stop posting until you’ve actually read the opinion and its associated caselaw, particularly as it relates to an Article 38 right to counsel.

  25. Atticus says:

    I wonder if that scrutiny will address the fact that the majority of the appellate judges who sat on the Foster case for years were actually Navy judges.

  26. Anon says:

    This decision is a legal abomination. How can anyone, with a straight face, claim that a person who had three defense attorneys was denied his right to counsel under the 6th Amendment; particularly when there is no viable claim that those attorneys provided ineffective assistance (also the fact that even appellate defense didn’t see this as an issue when they decided not to appeal it, but had the issue forced down their throat by the NMCCA). This idea that a prejudice analysis would be speculative is bunk. Most IAC prejudice analysis requires speculation on what might have happened. They didn’t want to do the prejudice analysis because they knew there was none, and without prejudice they wouldn’t be able to make their point by kicking the case.

    This is an example of anger at stupid decisions clouding legal analysis. Letting the attorney out of the case the way they did was stupid. But the 6th Amendment is not concerned with punishing stupid decisions. If he received the assistance of counsel at trial, and that assistance met the minimum standards required by the 6th Amendment, than that should be the end of the analysis. If they want to wag their fingers at the Judge, TDS, and the Government Counsel, and report the good Capt to the bar, that has nothing to do with the accused’s conviction.

    Being pissed does not make for good legal support, and being pissed is really the only basis for the Courts decision.

  27. JimmyMac says:

    Atticus…I think the term “sat” correctly captures the NMCCA Judges’ position for most of the Foster history.

  28. Another Dissenter says:

    Well said.

  29. Article16 says:

    Not to overly stalk the guy, and I’m sure he put a lot of good work into the case, but it’s probably best not to tout, on the firm website, your experience in “defending a Marine charged with conspiracy and premeditated murder in the shooting death of an Iraqi civilian during Operation Iraqi Freedom.”

    If there’s more appellate work on this, I hope they take it easy on him and move to his last initial.

  30. Atticus says:

    This is the kind of decision, coming at this time, that leads to fiascos like NMCMR vs. Carlucci (26 MJ 328).

  31. Atticus says:

    Agreed. Why was it necessary to dime him out by name? They don’t usually do that.

  32. Anonymous says:

    Not what happened here. He did not file a motion for leave to withdraw, nor did he even deign to speak to the client about withdrawing.

    The first the client heard about it was from the judge as a fait accompli. One can argue about whether the findings should have been overturned or whether a prejudice analysis should have been done, but I see no way that you can look at this and say, what’s the problem as you appear to do.

  33. Anonymous says:

    They addressed that, and even the dissent in this case agreed, that at least as to sentencing, this attorney played a not insignificant role in preparing a mitigation case which went away when he did (not only his prep but apparently the expert he was working with).

    I don’t know the nuts and bolts of the workings of the case but it is common when multiple attorneys are involved for some to work solely or primarily on the merits and others to work solely or primarily on sentencing.

    If you don’t like the decision, then the dissent and a concurrence both talk about prejudice, what’s your response to those?

  34. Anonymous says:

    That’s the main problem here. It would have been more palatable if the Court had actually dumbed this one down. Just do a bare-bones legal analysis without the vitriol. But you add the vitriol and diming out and you make people question and dissect your analysis because you look more emotional than judicial.

  35. Anonymous says:

    Atticus,

    Inasmuch as CCA must conduct a full Art. 66 review regardless of what the ADC may or may not allege to be an error, whether ADC fails to spot an issue is of little moment.

  36. Anonymous says:

    Anon, Another Dissenter,

    You should take a look at US v. Gonzalez-Lopez, 548 U.S. 140, 150-51 (2006). Scalia explains why some errors, like IAC may be tested for prejudice and ones where the right to counsel is denied cannot.

  37. BC says:

    Concur that the DC, MJ and gov’t could have done a better job documenting the severance and options the accused and counsel had. Most DC would do that just to CYA. But the Maksym concurrence throws a lot of unnecessary rocks. Perhaps they have never made any mistakes in their military justice careers.

    I also agree – the timing is quite remarkable with the incoming NDAA 506 probe into whether the Navy JAG should have more authority over the Marine JA community. The parallels to the Foster rant are unmistakable.

    To characterize Capt B’s departure as a “[seeming] abandon[ment] of his client just weeks before the commencement of a murder trial” is a bit over the top. I would guess that Capt B (incorrectly) figured his status as the lowest ranking defense team member, coupled with the fact that the accused was represented by a LtCol, a civilian hired gun, and would be soon detailed a third DC (another LtCol), meant that his client was in more than capable hands. But, he screwed up – okay, got it. All parties failed to clarify either the accused’s understanding of his right to object or clarify whether that occurred on the record.

    However, the concurrence appears to turn this into more than it is. If you have never made any mistakes in your military justice career, go ahead and throw rocks and call in the Rules counsel. Otherwise, it might be better to take the high road and just set aside the case. But call in fire on the entire defense team and the MJ? Probably not necessary.

    “Military judges would be well-served to refrain from unnecessary counseling of an accused servicemember during any stage of the trial” was NMCCA’s response to then MJ Maksym’s counseling of the accused in U.S. v. Barnes (the only assignment of error in the case where they did not find the MJ to be in error). 60 MJ 950.

    Despite the prior admonition, the “unnecessary counseling” continues.

  38. Anonymous says:

    Counsel was not denied here. The Constitution guarnatees adequate representation by counsel, but not the counsel of your choice.

  39. Anonymous says:

    Perhaps since he has been dimed out numerous times he feels comfortable diming out others.

  40. Anonymous says:

    Counsel was not denied here.The Constitution guarnatees adequate representation by counsel, but not the counsel of your choice.

    So that means to you, even if you have had a counsel on your case, all the way up to trial, who is working on a critical part of your sentencing, if he just up and leaves without so much as a see ya, oh well, too bad, we can just plug someone else in, no problem?

    That doesn’t sound like adequate representation to me.

  41. anonymous says:

    When I worked at Code 46, Code 45 had a reputation for trashing trial defense counsel at the drop of a hat, and without good cause. It looks like this mess was started by the Court though, as it wasn’t initially raised by defense appellate.

  42. Anonymous says:

    I remember that case, although if I remember it correctly the TDC’s pending IA was known to all parties several months ahead of time. A mistrial a few weeks before the IA date left the case unresolved when the time came to deploy. Govt re-preferred charges but agreed to wait until TDC’s return to try the case. However, Govt didn’t withdraw and dismiss the newly preferred charges, and Assistant TDC expressed concern about speedy trial clock still running, prompting Govt to set the case for trial. Accused refused to proceed without TDC. MJ ordered NLSO CO to cancel TDC’s TAD orders, which he did, and the TAD command to return the TDC to his parent command, which it did. Could have been bad if TAD command had refused to comply–I’m not sure the MJ would have had the authority to do anything but abate the proceedings.

  43. Anonymous says:

    Where was the TC? You should call and ask Wade Walker’s detailed DC at the capital rehearing because it’s the same guy.

  44. Anonymous says:

    Guy kidnapped and murdered a civilian after pressuring his squad to help him. He got 11 years. Sounds like pretty adequate representation.

  45. Anonymous says:

    Wow, lots of misstatements of law here. For all of you wrapping yourself in the 6th Amendment, you may want to do some homework. Your assignment: compare and contrast the 6th Amendment and Article 38 of the UCMJ.

    Article 38 guarantees the right to your specific military counsel. You can be a gov’t hack and cry about it, and wish you could plug and play defense counsels like different lines on a hockey team, but that’s the law. Suck it up, drive on, and stop making stupid comments.

  46. Anonymous says:

    There’s that “s” word. I always know the argument is vapid when that one gets thrown out.

  47. Anonymous says:

    Article 38 means you have the right to your specific counsel? So does every former ADC have release letters from the clients they handed over at the end of their careers/tours? I seriously, seriously doubt it.

  48. Anonymous says:

    Article 38 means you have the right to your specific counsel?So does every former ADC have release letters from the clients they handed over at the end of their careers/tours?I seriously, seriously doubt it.

    Appellate representation is different from trial representation. Still, letters are sent out to clients informing them of a change in appellate counsel. Even that was more than what happened in this case.

  49. Anonymous says:

    Here’s what Judge Couch had to say in another case: “Despite the military judge’s repeated invitations on the record, we decline to disturb the court-martial’s verdict. We will, however, take this opportunity to once again express our concern with the comments made by, and lack of judicial deportment exhibited by, this military judge during his trials. See United States v. Barnes, 60 M.J. 950 (N.M.Ct.Crim.App. 2005), and United States v. Denson, No. 200400048, 2005 CCA LEXIS 243, unpublished op. (N.M.Ct.Crim.App. 20 Jul 2005).”

  50. Anonymous says:

    I think the government has a great argument on the issue of whether there was even error here; there may yet be good cause as the Dubay MJ found. But in any event, if they test for prejudice, the G wins.

  51. Anonymous says:

    “The record is replete with needless comments and arrogant behavior by the military judge. The military judge grilled potential members, openly questioned the integrity of a potential member without sufficient basis, characterized as “imbecilic” a convening authority’s conduct in the case, openly contemplated contempt proceedings against a former panel member, [*10] and criticized a witness’ decision to smoke a cigarette. Record at 65, 189, 201, 243-44, and 312. More troubling to us is the military judge’s goading of the military counsel by his incessant sarcasm, and his pompous condescension towards them, often in the presence of the members. Id. at 80, 128-29, 130-32, 138, 164, 190, 191, 200, 249, 267, 286, 303, 306, 331, 355, 387, 397, 399, 424, 445, 454, 463, 466, 468-69, 481, 510-11, 550-52, 573, and 575.”

  52. TG says:

    Anon 4/23 at 1701:

    You remember correctly. If that’s the case, you also remember the, shall we say, none-too-calm Military Judge that did this. It was touch-and-go for a while, because of the release issues of defense counsel. (It also makes me wonder who I’m talking to on this – the list isn’t that long).

    What’s interesting in that case – as with the one the court had here – was that there were two different competing considerations. On the one hand, there is the interest of the trial. On the other, there is the downrange mission or the release from active duty. There is a tension here that has to be resolved – and although I do not in any way hold with the personal attacks leveled at the judges here, or at the court as a whole, I respectfully point out that this is not the way to resolve the issue – in fact, it seems to overpressurize the problem.

    True, this problem should never have arisen. And probably, it never will again, at least in this form. But in the case we are both remembering, you also remember that ADC used the time limits as a tool against the government – as she was absolutely entitled to do. This case seems to me to be custom-made to recreate that same situation. The crisis that could result, in my opinion, should be avoided. We all know that in a competition between the line and the JAGC, the JAGC loses. Remember what happened the last time (the USS AMERICA incident)?

  53. TG says:

    Respectfully, the problem with that logic in the real world is that none of the services personnel commands make any distinction between defense counsel and any other type of officer – line or otherwise. From their perspective, there is no difference.

    What this case does is invites a Military Judge to try to modify or overturn a personnel order. Do they have such authority? How do they enforce it? Would it cause flag-level pressure to be put on TJAG to “reign in” a military judge? COULD TJAG do such a thing? Too many sticky questions here for me.

    In my opinion, for what it is worth, having been a TDC and SJA, the JAGC should do whatever it can to not rock the boat. The combat arms need us, but this could quickly devolve into another UCI case like the one with SECNAV’s son a few years back.

    As I said – sticky.

  54. Anonymous says:

    I don’t think it’s fair or wise to place the legal burden on the DC here. Ethically, I think if the DC was unable to obtain a release from his client then he should have submitted a request to extend on active duty until the case was resolved. However, there is nothing that obligates the government to approve an extension request, and that is a problem. Legally, I don’t think it makes sense to expect a military DC to remain the DC on a case post-discharge. Are they supposed to keep the case pro bono? No one forced the government to accept a resignation from a DC with unresolved cases, but it had no legal incentive to say no. If the government allows a military DC to resign before the proceedings are completed, it should be obligated to dismiss the case, just as it would if it allowed an accused to resign before the proceedings were completed. I realize that in the case of the accused the obligation comes from a lack of jurisdiction, but there’s no reason we couldn’t amend the RCM to provide for dismissal if a DC is separated, deployed, or transferred without the attorney-client relationship having been terminated by proper authority. It would give the government an incentive it does not currently have to consider attorney-client relationships when making personnel decisions about officers in DC billets.

  55. TG says:

    Don’t be so fast to assume this one gets certified. Remember, certification opens the door to the Nine. If I were making the call at 46 to ask TJAG to certify, I might consider whether it made more sense to let this one go to retrial and see if we couldn’t limit the damage in other cases – just as the court suggests in the opinion they will – rather than give the Nine a factually juicy case that could easily attract attention in the cert pool.

  56. TG says:

    Interesting point. I like two points you make:

    1. There’s another word for pro bono: Involuntary servitude. Does the 13th Amendment ring a bell?

    2. It does seem like the government was culpable in some respects allowing the DC to leave here. I admit, its a case of the right hand not knowing what the left is doing, but we charge the Government with that all the time.

  57. Anonymous says:

    Now if they’d only send a letter to the TDS letting them know appellate counsel had been assigned and the TDS relieved. Boy, that’d be nice…never happened in my 6 years!

  58. clue says:

    CCA “presumes prejudice” from an absent defense counsel on the team without even citing Cronic (prejudice can be presumed in very few cases, including totally absent counsel). Cronic doesn’t apply, but at least acknowledge relevant law rather than make crap up.

    It rubs me in a very bad way that one of the most pro-government appellate courts in the country is “presuming prejudice” when there probably isn’t even error here. Not coincidentally, this is an Iraq case.

  59. Anonymous says:

    I could be mistaken, but I don’t think detail of appellate counsel severs the attorney-client relationship. I seem to recall NMCCA opining in US v. Palenius that the defense team is like an amoeba that keeps accumulating lawyers until each has been released by competent authority. That suggests that TDS should be applying to NMCCA for release upon assignment of appellate counsel.

  60. It is a conspiracy says:

    Clue,
    you need to buy one.
    Cite cases that you readily admit do not apply? I think they cited CAAF’s Baca op, which means they didn’t exactly make up presuming prejudice.

  61. clue says:

    Baca is basically the MJ interfering and destroying the attorney-client relationship, right? I think it’s different.

  62. Dwight Sullivan says:

    Right you are, Anon 0818. Thanks for the correction. Please keep ’em coming.

  63. OldSoCalDC says:

    There may be a very good reason for Judge Maksym to recommend that the JAG look into the conduct of this case, rather than SJA to CMC. At the time of the court martial, Capt Bass was assigned to MCAS Miramar. He was made available to be detailed to the present case by the SJA, 3dMAW, who had most likely been delegated authority for IMC requests by the squadron CO. Thus, for his administrative – but not his FitRep reporting – chain-of-command the SJA was a member and would likely fall under the category of being in a “supervisory position” over Capt Bass. The SJA would have also likely have been consulted before Capt Bass was allowed to begin terminal leave. The SJA at the time is now SJA to CMC.

  64. Weirick says:

    Judge Price may have missed this quote, “Deprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of representation he received.” US v. Gonzalez-Lopes, 548 U.S. 140, 148 (2006).

  65. TG says:

    That’s always been a sticky issue. I know of a case a couple years ago where the long Appellate rights statement and the SPOA were missing from the record of trial. ADC took the position that he could not appear in the case without some indication that the Accused had requested assignment of appellate counsel. They issued an order directed to TDC that he had 10 days to produce the documentation, and that he was not released as the DC until that was produced.

    The implication of the order was that, as a normal matter, TDC is relieved upon the proper appointment of ADC.

  66. It is a conspiracy says:

    Clue,
    you are clueless. First you claim the court made up the presumption of prejudice and then you say a case where CAAF presumed prejudice is different b/c the MJ interferred, just be consistent. The NMCCA basically found the MJ at fault and your first statement is low in merit.

  67. Weirick says:

    With the following exception, “we hold that the error violated respondent’s Sixth Amendment right to counsel of choice at that this violation is not subject to harmless-error analysis.” U.S. v. Gonzalez-Lopez, 548 U.S. at 152 (2006). Hard for the G to win when counsel of choice is not susceptible to harmless-error analysis.

  68. Weirick says:

    Adequate representation is not the question.

  69. Anonymous says:

    Weirick:

    Gonzalez-Lopez does indicate deprivation of counsel of choice is not susceptible to harmless-error analysis. But counsel of choice is not invoked here as that right extends to civilian defense counsel, not one of two detailed defense counsel.

  70. billy says:

    Yep. Detailed counsel does not equal counsel of choice. What a stupid decision. Are all Navy judges as pompous as Maksym?

  71. Ama Goste says:

    Never heard of such a rule, and I was a defense counsel in multiple assignments.

  72. Ama Goste says:

    Yes, it was common practice when I was a defense counsel to get release letters from every client.

  73. Boo Radley says:

    If a detailed counsel under Article 38 is not properly severed from a case, prejudice is presumed, and that error is not capable of assessment. Detailed defense counsels are not fungible. It is not just this Navy court that holds this; that has been the consistent law throughout all military courts and from CAAF.

  74. Anonymous says:

    Deprivation of Article 38 detailed defense counsel is also not subject to harmless error analysis. That was the basis of the ruling in this case.

  75. Anonymous says:

    Pompous + indulgent = maksym.

  76. Dwight Sullivan says:

    Weirick, thanks for your post. I always find your posts to be interesting and/or helpful.

    I’m doubtful that a Sixth Amendment remedy comes into play. The majority took pains to note that the right to counsel under the UCMJ and the MCM exceeds that provided by the Sixth Amendment. The court held: “Given the elevated treatment this right to counsel has been given by both Congress and the President, appellant’s uninformed acquiescence to Capt Bass’ departure is best interpreted under these facts as a constructive objection to the loss of this right.” That appears to me to find the termination violated sub-constitutional rights rather than the Sixth Amendment. The remedy for a Sixth Amendment violation would, therefore, be inapplicable. Thoughts?

  77. Anonymous says:

    I’m willing to go with the ulterior motive theory, but only because I agree with your characterization of these so-called senior judges. I don’t know the appellant’s race, but his deeds were against iraqis – the limited facts and circumstances these guys were willing to extend this silly ruling to. In keeping with this ulterior motive theory, I doubt the likes of geiser and maksym would have ruled the way they did if the victims were not iraqis.

  78. Anonymous says:

    An Iraq case, ulterior motive, maksym and geiser – now the ruling makes sense.

  79. Anonymous says:

    Maksym’s in a league all his own, though geiser’s not far behind.

  80. Anonymous says:

    So let me make sure I understand your argument.

    An accused not only has no say in who is detailed, he has no say in who is retained, and he doesn’t even have to be told or consulted when one attorney is taken off his team?

    Then why do we spend all of that time at the beginning of every single courts-martial, asking the accused on the record if he is satisfied with counsel and if he has the counsel he wants?

    I mean according to you and others on here, who cares if he is satisfied or has who he wants, it’s irrelevant, he gets who he gets and if we want to pull one of his attorneys off in the middle of trial and replace him or her with another, hunky-dory.

    That’s the natural result of your argument.

    The correct argument is that no he does not have absolute control. He doesn’t get the absolute right to target his counsel. However, once a counsel is assigned to him and an attorney/client relationship is formed, he DOES have rights to have that counsel, particularly when they are on the case all the way up to right before trial.

    He CERTAINLY has the right to be consulted and to lodge an objection to that counsel leaving his case. The Judge can certainly excuse counsel over the accused’s objection, but the accused has the right to object and to know what in the heck is going on with his counsel.

    Why this concept is being debated is beyond me.

  81. Anonymous says:

    For an Article 38 violation, military courts are required to presume prejudice, and may not treat Article 38 counsel as fungible. That you cannot test for prejudice when a counsel has been improperly severed under Article 38 is consistent with the 6th Amendment analysis under Gonzalez-Lopez.

  82. Anonymous says:

    maksym’s in a league all his own. geiser’s close.

  83. John O'Connor says:

    Does anyone know if NMCCA decisions are binding given the President’s status as not a natural born citizen?

  84. Anonymous says:

    I’m glad Maksym recognizes how important DCs are to the system. Capt Bass knew he wouldn’t see this case through to completion, if not at the time he submitted his RAD request, then certainly well before trial. Even though the accused said he discussed this issue “in detail” with his counsel, I doubt he really had much say in the matter. The MJ’s treatment of this issue also reveals an all too common notion that the constitutional/statutory rights of an accused are sometimes viewed as trivial matters when facing serious charges. Attention to detail is the lesson learned here.

  85. We have nothing to lose but our chains . . . . says:

    Would the Navy Judges have been as vitriolic if this was a Navy case? As speculated above, smells like part of the Navy JAG power grab over the USMC JA community. Since most of the courts-martial from the DON come from the USMC, a conspiracy theorist might think the blue side wants to expand their control over the green side to justify their bloated infrastructure.

  86. Phil Stackhouse says:

    Not weighing in on the lofty legal stuff, but trivia – one of the counsel for a co-accused of Hutchins was the counsel deprived in Gonzalez-Lopez. Small world

  87. Weirick says:

    Sir,

    Thank you for the compliment, but Colonel, I served with Tim Cox, I knew Tim Cox, Tim Cox was a friend of mine. Colonel, I am no Tim Cox.

    As for the counsel issue, this may take some time to think through, but here are some initial thoughts. It is correct that The Hutchins court took pains to point out that A/C could only be severed for good cause or with “express consent” and concluded that right to counsel of choice is greater under UCMJ. It may not be that counsel of choice rights under the UCMJ are elevated above the 6th Amendment right, thus UCMJ and 6th rights are the same and the remedies should also be.
    UCMJ, release of counsel in only 2 circumstances:
    1) “Express” consent of accused – does the modifier “express” really change anything? How would implied consent manifest itself? CM starts, new DC is at the table, MJ never mentions or asks accused.
    2) Finding of good cause – This appears to be the issue NMCCA was most concerned with. Not only was good cause missing from the record, there was no cause articulated by MJ.

    SCOTUS in Gonzalez-Lopez does not make an absolute rule regarding interference with AC. The Court still gives “wide latitude” to trial courts when balancing counsel rights with, bar membership, conflicts, calendar, and ethical standards. This in practice looks like a determination of good cause. – “Accused, you want Lawyer X, with whom you have formed AC, her calendar is full for the next year, thus I find you must use another lawyer. I make this finding by ‘balancing the right to counsel against the needs of fairness and the demands of my calendar.’” = Good cause.

    Consent, provided it is knowing and intelligent, will cure all problems with choice of counsel, under either UMCJ or 6th.

    This is all to say that it could be that UCMJ and 6th are the same, not subconstitutional in the case of the former, when determining the right to counsel of choice, thus the remedy should be the same.

    Not wedded to this line of thought. It would be nice if the CAAF would address this issue and clean up some of the confusion from Spriggs. If there is an ongoing AC, a MJ should not be looking to the rules regarding IMC requests. The only inquiry should be under 506. Thought this is a problem partially created by the IMC regulations. It has always seemed odd that an accused would have any need to initiate an IMC request for counsel he has previously been detailed and formed AC. (note, this all assumes no shenanigans on the part of DC)

    A problem for another day.
    Thoughts?

    Weirick