Here’s an interesting article about SSgt Wuterich’s counsel’s motion for relief under United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010) (en banc), certificate for review filed, __ M.J. __, No. 10-5003/MC (C.A.A.F. June 7, 2010).  The defense seeks relief due to Marine Corps’ retirement of one of his lawyers over defense objection.

The issue was raised at a motions hearing.  Trial is currently scheduled to start on 13 September.

[Disclosure:  I was one of SSgt Wuterich’s appellate counsel on two Article 62 appeals.]

20 Responses to “SSgt Wuterich seeks relief based on NMCCA’s Hutchins opinion”

  1. Mike "No Man" Navarre says:

    Not exactly the perfect Hutchins motion:
    Puckett said the Marine Corps retired Marine Lt. Col. Colby Vokey in 2008 despite the objections of Vokey, who wanted to stay on the case as his detailed military counsel until after the trial.
    . . .
    After retiring from the military, Vokey continued to represent Wuterich as a civilian lawyer. But Puckett said that is no longer possible because Vokey now works for a firm that has represented another Camp Pendleton Marine who is being called by the prosecution to testify in Wuterich’s trial.

    That presents a conflict of interest and would make it difficult for Vokey to cross-examine the witness during the two-week trial, Puckett said.

    Vokey plans to withdraw from the case, and the defense will ask the judge to dismiss all the charges against Wuterich, arguing that his defense has been compromised, Puckett said, adding that Vokey was the only defense lawyer to go to Iraq and witness the scene of the killings.

  2. Anonymous says:

    Sounds like something Maksym and all will buy into when the motion is denied at trial and the writ gets granted in 9 months. The last bastion of defense: delay, delay, delay.

  3. Anonymous says:

    Am I the only one here who sees that they may have just thrown the good Colonel under the bus? I am curious as to why, if he continued representing Ssgt Wuterich, he joined a firm making a conflict? Perhaps the PR implications are going to come down on him like they did on counsel in Hutchins…

  4. Dwight Sullivan says:

    Anon 0915 — the Government has delayed this case for years by making two separate Article 62 appeals. Now, I’m not being critical of the Government for doing so — after all, the Government won both of them. But suggesting that the defense is delaying prosecution of this case is way off the mark.

  5. Friend says:

    From the uninformed peanut gallery:

    One could opine that the issue was self-generated by the defense by the filing of time consuming appellate briefs…please I am throwing no stones at any counsel for exercising professional and ethical diligence in pursuing Art 62 appeals or otherwise.

    I wonder what the circumstances were of the retirement – forced, voluntary, etc. If voluntary, not sure how the gov’t/prosecution/CA is liable to keep a military DC on line/on active duty.

    Still – I am not sure this is a HUTCHINS issue per se. Did the gov’t and judge do all the appropriate covering of their collective professional hides before releasing him?

    Would love to see the filings of both sides. Any chance we could get them here?

  6. Mike "No Man" Navarre says:

    Perhaps DON could force LtCol Colby to stay on the Wuterich case and either (a) get a waiver from his other client or (b) create some sort of an ethical wall where one of SSgt Wuterich’s other 4 lawyers cross examine the other Marine. If they did and Colby still refused to represent Wuterich citing the client at the firm he voluntarily joined, wouldn’t the gov’t essentially blunt the argument? Or is Hutchins so braod that retiring him is enough even though he represented Wuterich after he was retired? It would seem a prejudice requirement would come in to play there. In any event I think the argument is fascinating and I foresee many, many more Hutchins motions in the near term. If any of the counsel have the motions please do send us copies as I am quite tied of fighting the DON over releasing such things.

  7. Friend says:

    Wow – now I feel silly. I failed to realize that the 62 appeals were from the govt. Now my memory is jogged – is this the case of CBS outtakes that the MJ did not review then ruled there was a reporter’s privilege? I know I am totally messing that up….”lack of precision” apology extended.

  8. Anonymous says:

    FYI, this article made the Early Bird.

    Friend: LtCol Vokey tried to stay on the case but was “forcibly” retired.

    And isn’t it interesting that while the Gov’t can’t seem to find a way to retain defense counsel on these “war crime” cases, they are perfectly capable of keeping the same trial counsels at Pendleton for the last 5 years in order to prosecute them?

  9. John O'Connor says:

    What firm did Vokey join?

    Wouldn’t he have known that his joining that firm would create a conflict with an ongoing criminal representation in which he was engaged?

    If Hutchins survives CAAF, my best guess is that it’s going to be pretty limited to its facts (withdrawal on the eve of trial and the trial proceeded without sorting out first whether there is prejudice in the withdrawal, or whether the prejudice can be cured). I don’t think discharge from the service generally will cease to be grounds for withdrawing from representation.

    If having visited the scene is the real claim of prejudice, I wonder if that can be mooted by giving one of the current counsel a trip to Iraq for a site visit.

    Could the MJ simply deny the motion to withdraw as counsel? Once counsel continued the representation as a civilian, it would seem to me that the causal event isn’t counsel’s retirement (at best that’s a very remote cause), as the direct cause is counsel’s post-retirement decision to join a firm that has a conflict with a current representation.

    All this could be wrong, I’m just going on the facts described in the comments and in the news article.

  10. Interested onlooker says:

    It seems that there’s a path where Vokey finds himself in a conflict of interest situation without it being his fault, depending on the timing of various events.

    Vokey is retired from the USMC after starting the case, works for a while as a civilian, then joins his current firm, which has represented the Camp Pendleton Marine in another matter which does NOT conflict with the Wuterich case. No conflict so far, right? At this point the government announces it wants to call said CP Marine as a witness in the Wuterich case. Isn’t Vokey now in a COI situation through no fault of his own? I don’t know the timeline of all of these events; if the government put CP Marine on the witness list before Vokey joined the firm, this line of reasoning doesn’t apply.

    Maybe there’s a simple solution: if the government forces defense counsel to retire, the defense gets the option to forcibly retire the prosecutor and everyone gets a new lawyer :-)

  11. JWS says:

    Col. Sullivan: If you speak with SSgt Wuterich or his counsel, tell him we’re praying at this end. Though it was many years ago, I have myself faced the same tactical problem more than once. That the Corps now betrays him is beyond me.

    Why is it the govt is so determined to dump SSgt Wuterich’s lawyer? From a judicial perspective, this just plain stinks — especially if you consider how careful the gov’t has been to keep TC intact.

  12. Phil Cave says:

    Yes.

  13. Friend says:

    Anon 10:39 –
    I still don’t know what you refer to as “forced” retirement. Did he fail PRTs? Medically discharged? Max his time in service as a FOS’d O5 (I have to assume this – I hope I have not insulted Mr. V), or some other unpleasantness? Or did he decide to retire, it was approved and then tried to undo it and was refused? There are probably quite a few scenarios here but when you say forced, well, its just requires some explanation.

  14. Anonymous says:

    He had put in for retirement, but then put in to extend once the Government started dragging the case out. He was extended several times, and then the Marine Corps said it wasn’t going to extend him anymore. So he was retired against his request to extend through the end of the case.

  15. Anonymous says:

    Can Vokey be recalled to active duty — “unretired” so to speak — in order to blunt this issue? From what I have been able to glean from the above discussion he’s probably not yet reached 30 years and so has not yet been transferred to the formal retired list.

  16. Dew_Process says:

    JOC,
    First, as someone else posted, “timing” is everything. Second, having represented a lawyer who found himself in a similar pickle, the MJ could [and probably should] deny the motion. There is a very murkey area of law involving waiveable and non-waivable conflicts, e.g., representing a client where the victim is a prior personal client is generally non-waivable, even if both consent, due to the “appearance” issue.

    From what I’ve been able to ascertain from both this blog and the media articles, Vokey’s problem [real enough] is an “institutional” conflict meaning that his now Firm as an institution of which he is a member, has the conflict.

    That is a waivable conflict by SSgt Wuterich, and the Firm’s client can be protected by the proverbial “Chinese Wall” and having someone else from the Defense Team cross the problematic witness.

    Alternatively, the MJ could protect SSgt Wuterich’s right to counsel by eliminating the conflict, i.e., tell the government to use an alternative form of the witness’s “evidence,” stiuplation, interrogatories, etc., to keep the conflict from ripening.

    Conversely, the Gov’t needs to forcefully demonstrate the need for this particular witness [versus alternative forms of whatever his “evidence” may be] and that they are not calling him to gain a tactical advantage to SSgt Wuterich’s disadvantage, i.e., forcing the disqualification of one of his key lawyers.

    For those with a professional interest, John Wesley Hall’s seminal treatise, “Professional Responsibility in Criminal Defense Practice,”(3rd) is the “Bible” for researching conflict issues.

  17. Anonymous says:

    Could the USMC recall Vokey to active duty (voluntarily or involutarily) to rejoin Wuterich’s defense team and potentially nip the severance issue? From what I’ve been able to glean from the above postings Vokey probably has less than 30 years of total service and has not yet been transferred to the retired rolls. I can think of several accused servicemembers recalled for trial while receiving “retired” pay. Anyone know if the service can do the same for other Convenience of the Government reasons?

  18. cgittins says:

    I wouldn’t be so quick to have the Government dump these prosecutors. To date they have not had a very good record, despite not carrying a regular caseload. They are the gang that can’t shoot straight, and that may be in SSgt Wuterich’s best interest.

  19. Friend says:

    Interesting…I wonder if it were due to the case or whether there was no more valid administrative loops left to extend him through. One obviously is not good for the gov’t – the other, not so sure. We’ll see how this one plays out. Thanks!

  20. Anonymous says:

    The government can offer members of the IRR ADOS orders but the counsel would have to voluntarily accept them. The government cannot involuntarily recall members of the IRR without approval from the SecDef based on changes limiting involuntary recalls over the past several years. The legal loophole – recalling for trial – only applies to servicemembers who are themselves subject to legal proceedings.

    As for government counsel doing a poor job while having no regular caseload – truly this is a misinformed opinion. Government counsel in this case have substantial collateral duties (and have had them for a number of years) and are simultaneously litigating numerous other major cases, each the equivalent of nearly a full caseload in and of themselves. (And no, I’m not a prosecutor on this case, but yes, I may be biased…)

    Finally, for those conspiracy theorists among you, this was hardly an attempt to deprive defendants of valuable defense counsel. Rather the government has always supported the retention of DC on cases in these circumstances. It is a case of the one hand not knowing what the other is doing; the military justice infrastructure is completely incapable of intervening in the administrative/manpower bureaucracy, which rolls along regardless of consequences to cases.