Here are the three issues that the Judge Advocate General of the Navy certified to CAAF yesterday:

I.  Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding, inter alia, that the military judge severed the attorney-client relationship with Captain Bass?

II.  Whether under R.C.M. 505(d)(2)(B), the Navy-Marine Corps Court incorrectly found no “good cause” on the record for the replacement of Appellant’s second detailed defense counsel with another counsel?

III.  Whether the lower court applied the wrong standard and erroneously presumed, without assessing, prejudice and set aside the findings and sentence, where Appellant’s statutory rights, and constitutional right to effective assistance of counsel, were satisfied throughout trial?

5 Responses to “Hutchins certified issues”

  1. Weirick says:

    There is something odd about issue I. Caveat: having only read the opinion and not the ROT this issue may be addressed by the MJ in the ROT. Issue I asks whether NMCCA erred in finding the MJ severed the attorney-client relationship with Capt Bass. From the opinion is appears that the MJ never severed the relationship. From the opinion, the MJ stated, “I have been informed by counsel that he arrived at his Expiration of Active Service in the Marine Corps, and has been discharged from the Marine Corps and has been relieved as detailed defense counsel in this case . . .”

    From this passage it appears the MJ found that Capt Bass was relieved as detailed defense counsel. That finding, however, does not address, in any way, the severance of an attorney-client relationship. So, if the CAAF determines that NMCCA erred in finding the MJ severed the relationship there is still a problem for the Government. Specifically, the MJ allowed the trial to proceed with one of the Accused’s counsel absent from the court martial. Stated another way, even if the CAAF finds in the Government’s favor on this issue, there remains the problem that the Accused was deprived of the counsel of choice, in violation of the Sixth Amendment.

    As mentioned before, this is not to take issue with the Government’s phraseology; rather this comment is to ask whether this issue resolves the issue. This may be a moot, or moo, point because the actions of the MJ unquestionably resulted in a de facto severance of the attorney-client relationship.

  2. Presley O'Bannon says:

    Great point Weirick. Plus, the use of “inter alia” in Issue I is weird as well: is the JAG requesting a plenary review by CAAF for any potential errors made in the NMCCA opinion? I don’t see what the purpose of that phrase is.

  3. Edward Rooney, Dean of Students says:

    I think the “inter alia” modifies the word “finding”, not “erred.”

  4. Presley O'Bannon says:

    But even if it modifies the word “finding”, then it still opens up CAAF review to _any_ “finding” made by NMCCA, would it not? Which would still by definition be plenary review. If not, then what exactly does the phrase “inter alia” add to the certified issue?

  5. Edward Rooney, Dean of Students says:

    My opinion (worth what was paid for it) is that it does not open CAAF review to any finding made. The “inter alia” merely notes that there were multiple findings, of which this particular finding is reviewed. Therefore, the use of the phrase “inter alia” merely recognizes that NMCCA made more than one finding…I think.