Yesterday, the N-MCCA denied a petition for an extraordinary relief in McMurrin v. United States, No. 200900475 (N-M Ct. Crim. App., 20 Nov 2011). This is the same Fireman McMurrin as United States v. McMurrin, 69 M.J. 591 (N-M. Ct. Crim. App. 2010) (en banc) (aff’d, 70 M.J. 15 (CAAF, 2011)) (blog posts here and here). In that case, some findings and the sentence were set aside and a rehearing on sentence authorized.
The rest of the story comes from yesterday’s order:
Captain (CAPT) Paul C. LeBlanc, JAGC, USN, and Captain (Capt) Michael D. Berry, USMC, represented the petitioner before both appellate courts and formed an attorney-client relationship with the petitioner. . . .
In June 2011, CAPT LeBlanc and Capt Berry requested that the CA fund their representation of the petitioner at his courtmartial proceedings. The CA declined. In July 2011, charges of negligent homicide and failure to obey a lawful order were preferred and the CA directed an Article 32 investigation into those charges. The Article 32 investigation was held in August 2011. CAPT LeBlanc and Capt Berry were not present. The newly preferred and investigated charges were then referred to a general court-martial. The charges which were affirmed by this court and returned to the convening authority with a rehearing on sentence authorized are not before the current court-martial. In September 2011, during pretrial motions, the military judge denied a defense motion to recognize CAPT LeBlanc and Capt Berry as detailed trial defense counsel. The record does not reflect that the petitioner has submitted a request that CAPT LeBlanc and/or Capt Berry be assigned to represent him as individual military counsel. See Rule for Courts-Martial 506, Manual for Courts-Martial, United States (2008 ed.). The case is currently stayed pending resolution of the petition for extraordinary relief.
The CCA denied the petition, ruling:
We are not persuaded that this set of circumstances merits an extraordinary writ. First, although CAPT LeBlanc and Capt Berry have an attorney-client relationship with the petitioner and are properly assigned to represent him before this court and the Court of Appeals for the Armed Forces, there is no evidence presented in support of this writ that they were ever detailed to represent him before a trial court. The petitioner relies principally on Morgan for the proposition that appellate defense counsel join trial defense counsel as part of an appellant’s “growing defense team.” 62 M.J. at 635. The petitioner argues that the military judge’s erroneous consideration of Morgan’s applicability to this case is an abuse of discretion. However, an abuse of discretion is not a “usurpation of power.” The petitioner continues to retain his original detailed trial defense counsel and does not demonstrate that representation by only these two attorneys, without the assistance of CAPT LeBlanc and Capt Berry, would deprive him of a “clear and indisputable right.” Second, we note that the petitioner has not exhausted his remedies short of extraordinary relief. In particular, he has not requested the assignment of CAPT LeBlanc and/or Capt Berry as individual military counsel. Lastly, we are not convinced that the normal course of appellate review would be insufficient to resolve this case. If the petitioner is convicted at this trial, he will have the benefit of subsequent review and will have the opportunity then to argue why he believes that the principles of United States v. Morgan were violated, or why the absence of CAPT LeBlanc and Capt Berry resulted in undue prejudice to his court-martial.