Audio from today’s oral argument in United States v. Flores, No. 10-0332/AF, is available here.

Audio from today’s much-anticipated oral argument in United States v. Hutchins, No. 10-5003/MC, is available here.

I won’t have a chance to listen to Hutchins until the weekend.  How did it go?

28 Responses to “Audio up”

  1. Anon says:

    Hutchins was long. I think it took well over an hour. Sounded like the court doesn’t want to go down the structural error path. The government took some strong positions that drew lots of questions.

  2. WHERE'S THE BEEF? says:

    Remember “where’s the beef?”

    Except it’s not beef; it’s prejudice.

  3. John O'Connor says:

    Prejudice required,
    No harm losing third lawyer,
    Navy court is reversed.

  4. Phil Cave says:

    And so goes Wuterich.

  5. Gene Fidell says:

    Without commenting on the substance, I thought both counsel did a terrific job. This was a model oral argument.

  6. Late Bloomer says:

    Does that presume proper severance? Or is the propriety of the severance even relevant to the prejudice analysis?

    I thought that there was a case that said in an improper severance case, the prejudice analysis depends on who severed the A/C relationship. If someone other than the attorney/client severed the relationship, then it’s per se prejudice.

    Here, didn’t the MJ severe the relationship?

  7. Anonymous says:

    Representatives of both Govt and Defense were very good and very well prepared. But Defense seemed to concede that constitutional error did not occur. That made the structural error argument rather difficult.

  8. John O'Connor says:

    I agree that both counsel appeared to do a good job.

  9. Cheap Seats says:

    Interesting if this case is reversed due to no prejudice. It may still help Wuterich. Because Wuterich has not yet been tried, you can’t claim no prejudice. As such, the finding of improper severance is still valid. Dismissal without prejudice?? It will be interesting.

  10. RY says:

    I was a bit surprised at how long it took before the conversation turned to prejudice. If the tenor of questions is an accurate indicator, I’d bet on error but no prejudice.

  11. Anonymous says:

    I agree, but why exactly is there error??? Are the rules just windowdressing?

  12. RY says:

    My sense is that good cause was not shown. ETS or EAS is not good cause by itself. Simply detailing another counsel does not necessarily establish good cause to sever another defense counsel either. I suspect this case will provide more guidance on how much needs to be on the record to substitute counsel, an important aspect for military given PCS is such a part of our culture.

  13. John O'Connor says:

    Re Wuterich, it was interesting that they asked the Government if it would matter if the DC was willing to remain on active duty but the military said no. Isn’t that the situation in Wuterich?

  14. Anonymous says:

    Why wouldn’t EAS be good cause? What right is being protected?

  15. W says:

    I concur with you on that the judges did not seem satisfied with the good cause findings in the record.

    I’m not sure we disagree on whether or not EAS may ever constitute good cause in and of itself. I do think mandatory EAS (e.g. – following 2X failure to promote to O-4, or a wave of IRADs) will be viewed differently than a discretionary EAS such as resignation. In a mandatory situation dictated by Congress, I can see EAS as being enough. But that would still require a fact analysis – hence my feeling that we agree on the lack of a presumption of good cause based simply on EAS.

    I can imagine no facts in which PCS would ever be sufficient cause.

    Is an abatement of a proceeding the only method in which a trial court could use to try to bring leverage in order to forestall a DC’s PCS? Any other ideas?

  16. W says:

    Reply fail. I had intended to reply to RY.

  17. Anonymous says:

    What happens after EAS?

  18. Chad says:

    The right that’s being protected is nothing less than the right to effective, uninterrupted representation by DC. The accused shouldn’t lose counsel at the 11th hour because the Marine Corps can’t think outside the box and develop manpower policies that allow DC who start the job to finish the job. TC are truly fungible; DC are emphatically not.

  19. Anonymous says:

    So, no good cause if your 2nd sentence is right, that he “lost counsel” in this case, and that the manpower policies should prevent a change of counsel at EAS?

  20. W says:

    Your point has merit, but I don’t agree. We must keep in mind that ours is a military court system – which changes the paradigm. 3 counsel? Tell me of any other system that countenances the government paying for 2 attorney’s to support a civilian counsel hired by a defendant.

    How much deference should be given to detailing decisions made by the DC’s CO? Isn’t this fraught with the possibility for abuse?

    How long can a DC who no longer desires to serve be reasonably held on active duty for just one case? When there is a war on and repeated deployments to a war zone already strain manpower resources?

    What if the DC himself committed misconduct(e.g. – a DUI)?

    If there is no way to show good cause to sever a DC relationship, doesn’t the threat of letting an accused off scot free give an accused vast incentive to drag out a case indefinitely? Isn’t there enough incentive already? Wouldn’t your assertion allow an accused to hold the military hostage? For how long? Years?

    No, it is not an absolute.

  21. RY says:

    On a related note, it seemed the judges were also mindful of potential abuse by the Gov’t. If the accused has one of the best defense counsel, who is separating or PCSing, could the gov’t effectively force new counsel by delaying long enough? In short, there are a lot of factors at play and I don’t believe we’ll see any bright line rules in the Hucthins opinion, rather they’ll leave it to a fact-based analysis in each case.

  22. Cheap Seats says:

    RY has a point regarding government abuse as well. Remember, Wuterich is in the chute. In that case, GOVERNMENT appeals have resulted in the DC being removed as this thing drags on. Again, Hutchins and Wuterich are greatly different, but Hutchins will definitely impact Wuterich.

  23. Anonymous says:

    If they want to find prejudice, they’ll find it, or they will do a Jenkins where they act like they are confused and say that because they are confused that means there is prejudice. See 60 MJ 27.

  24. Anonymous says:

    The Government won all of its interlocutory appeals in Wuterich. So the delay was not only justified, but necessary in light of Article 62’s substantial proof standard.

  25. Anonymous says:

    Meant in reply to Cheap Seats @ 1305.

  26. Anonymous says:

    So where the appeal’s justified EAS works for good cause, but if not, it doesn’t?

  27. Cheap Seats says:

    Which would be fine if they hadn’t forced his very capable attorney off the case.

  28. Anonymous says:

    Defense delay granted in Hennis appeal

    According to an order filed in federal court on Wednesday, Hennis’ lawyers now have until Nov. 17 to file their opening brief in the appeal. A response from the Army officials named in the appeal would be due Dec. 20.

    The latest extension was granted for several reasons.

    According to a motion filed by Hennis’ lawyer, Eric J. Allen, additional time was needed to allow a national organization of defense attorneys to file a brief on Hennis’ behalf and to allow time for Hennis’ defense lawyers to give the case an appropriate amount of attention.

    Allen said in the motion that his office had to meet numerous other deadlines in the past few months on cases that included some before the U.S. Supreme Court.

    “A final reason is the subject matter of the brief is extremely complex .,” Allen said in his motion. “Counsel wishes to provide the court with a brief that addresses all of these complex issues in a manner that is easily understandable. More time is necessary to accomplish this goal.”