I have a goal this term to preview every oral argument, and in the beginning I was doing well by writing my argument previews well in advance. But the past few weeks of my day job have kept me busy, and I’m now behind the appellate calendar. Unfortunately, this means that one of the more important, and potentially more significant, cases of the term is getting less attention than it deserves. Though, this is also because of the 14,000 word limit on an appellant’s brief at CAAF, the Appellant’s brief in United States v. Hutchins, No. 12-0408/MC, uses 13,996.
The case of Sergeant Hutchins, U.S. Marine Corps, returns to CAAF for oral argument tomorrow, Tuesday, November 13, 2012. Hutchins was tried in 2007 by a general court-martial composed of members with enlisted representation, and convicted contrary to his pleas of conspiracy, false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, UCMJ. This case is at CAAF for the second time. The first time, CAAF reversed in part a decision of the NMCCA that set-aside the findings for improper release of detailed defense counsel upon EAS and resulted in Hutchins’ release from confinement (he was serving an approved sentence that included confinement for 11 years). After CAAF’s ruling, Hutchins was returned to the brig, and the case was returned to the NMCCA for further consideration.
Hutchins’ conviction resulted from his participation a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the “Hamdania incident.” He is (I believe) both the only conspirator to be convicted of a violation of Article 118 and the only one who remains confined in relation to the crime. There’s plenty of controversy in this case, including this excerpt from a recent McClatchy article:
Whatever happens will reopen some uncomfortable questions about military justice, pitting against each other two men who are at opposite ends of the spectrum: one a political appointee atop the Department of the Navy, the other an incarcerated private.
“The fact that the highest military court has to reasonably ask itself if the secretary of the Navy has unlawfully manipulated the process means that, regardless of who is ultimately victorious, the integrity of the military justice system as a whole has already been fatally compromised,” S. Babu Kaza, Hutchins’ attorney, said by e-mail.
Navy Capt. Pamela Kunze, a spokeswoman for Mabus, said Tuesday that “the Department of the Navy does not comment on cases currently undergoing the appellate process.”
But a comment on a case undergoing the appellate process is precisely the issue. On remand, the NMCCA affirmed the findings and sentence. It considered four issues, including: “the Secretary of the Navy’s comments concerning the appellant’s case amounted to unlawful command influence (UCI) that undermined the appellant’s post-trial rights.” The CCA categorically rejected this assignment of error, finding first that the Secretary of the Navy can’t engage in actual unlawful command influence, and next that his actions could not reasonably be seen by the public as indicative of an unfair proceeding. Notably, the CCA found:
“[t]he Secretary of the Navy does not fall within the statutory ambit of Article 2, UCMJ, and the statutory interplay of [Articles 2 and 37] does not contemplate an actual UCI paradigm applicable to the secretariat or civilian leadership.”
United States v. Hutchins, No. 200800393, slip op. at 4 (N-M.Ct.Crim.App. March 20, 2012) (Hutchins III). CAAF then granted review of two issues:
I. Whether the findings and sentence must be dismissed with prejudice where unlawful command influence from the Secretary of the Navy has undermined substantial post-trial rights of the Appellant.
II. The Appellant was interrogated by NCIS concerning his involvement in the alleged crimes, and terminated the interview by invoking his right to counsel. Appellant was thereafter held incommunicado and placed in solitary confinement where he was denied the ability to communicate with a lawyer or any other source of assistance. Appellant was held under these conditions for 7 days, whereupon NCIS re-approached Appellant and communicated with him regarding their ongoing investigation. In response, Appellant waived his previously invoked right to counsel and subsequently provided NCIS a sworn statement concerning the alleged crimes. Did the military judge err when he denied the defense motion to suppress the Appellant’s statement? See Edwards v. Arizona, 451 U.S. 477 (1981), and United States v. Brabant, 29 M.J. 259 (C.M.A. 1989).
Besides being long, the Appellant’s brief is somewhat novel in that it includes a full-color reproduction of the front-page of the November 30, 2009, issue of the Marine Corps Times, and an excerpt from an appearance Secretary Mabus made on Comedy Central’s The Daily Show with Jon Stewart. But on the granted issues, the brief is blunt. First, it highlights that the Secretary is a general court-martial convening authority (undercutting the NMCCA’s categorical rejection of the possibility of UCI by the Secretary). Then, it notes that the judges of the Navy-Marine Corps Trial Judiciary work for the Judge Advocate General of the Navy, who in turn works for the Secretary (undercutting their independence). Next, it takes exception to the NMCCA’s findings on remand, including that court’s indication that the Appellant’s motions to attach UCI-related documents were granted, when they were actually denied (questioning the Court’s credibility). Finally (if there is to be a “finally” in a 13,996 word brief), it attacks the JAG for certifying the case after the NMCCA’s first opinion, because “Congress never intended JAG certification to simply be a guaranteed method for the Government to appeal to this Court.” Appellant’s Br. at 35. These factors are all juxtaposed as evidence of the Secretary’s actual influence on the post-trial proceedings in this case.
On the matter of apparent command influence, the Appellant’s brief argues that:
. . . Secretary Mabus’ calculated public condemnation amounts to unauthorized additional punishment for Sgt Hutchins’ convictions. Undoubtedly, specific public censure by the Secretary of the Navy (to include condemnation for conduct that was subject to “not guilty” findings) is an irrevocable and severe negative consequence. In the eyes of the public, the political leadership has a predetermined goal and result for the Hamdania cases.
Appellant’s Br. at 42. For these violations, the Appellant seeks dismissal with prejudice. Appellant’s Br. at 45-46.
The second granted issue was considered by the NMCCA on remand (Hutchins III). That court agreed with the trial judge that the Appellant initiated the communication that led to his confession, making the confession admissible despite the Appellant’s earlier invocation of his right to speak with an attorney. The Appellant’s brief makes a strong case that the Appellant’s waiver was prompted by the investigating NCIS agents, but the high standard of deference given to a trial judge’s factual findings by an appellate court makes this a steep hill to climb at CAAF.
In it’s response, the Government argues that the NMCCA rightly found that the Secretary of the Navy cannot engage in UCI, but that even if he could, he didn’t in this case and his statements did not cause any unfairness in the proceedings. The Government’s argument includes the (rather sensible) assertion that the Secretary’s public pronouncements on clemency matters that are within his sole discretion merely “provides more transparency to the military justice system.” Gov’t Br. at 17. Notably, the Government’s brief highlights the fact that the NMCCA set-aside the findings and sentence five months after the Secretary made the public statements at issue (showing that the judiciary is independent), and it insists that the JAG’s decision to certify the case after the CCA’s first opinion was objective, in part based on the fact that the CCA issues a “published opinion [that] would also require overturning several other pending and future convictions.” Gov’t Br. at 27.
On the confession issue, the Government’s brief relies on the record:
The question of who initiated the conversation was a hotly contested factual issue during the suppression motion before the Military Judge. Appellant submitted a sworn affidavit . . .
However, both NCIS agents disputed all of Appellant’s claims, and clearly testified that Appellant initiated the conversation about making a second statement by asking if there was still an opportunity to tell his side of the story. The Military Judge’s findings of fact adopt the agents’ version over Appellant’s. The Military Judge saw SA Connelly testify at the motions hearing and found him to be a credible and reliable witness. The Judge also assessed the credibility of PFC Jodka’s testimony, which Appellant presented in support of his motion to suppress: “Based on the clear deception on the part of Jodka, which appeared designed to advance the case of the accused without concern for the truthfulness of his testimony, the Court found his testimony to not be credible.” Nor did the Judge find that Appellant’s affidavit was supported by the facts or credible.
The lower court found that the Judge’s findings of fact were not clearly erroneous and adopted them for its analysis of the suppression issue. This Court should as well. The resolution of this factual dispute essentially resolves the suppression issue.
Gov’t Br. at 35-36 (citations omitted).
In a reply brief, the Appellant’s counsel continues his attack on the notion that civilian leadership cannot unlawfully influence a court-martial case, noting in part that “the application of Article 37 is ultimately secondary, as UCI is not simply a violation of statute, but is an error of Constitutional dimension.” Reply Br. at 3. He also excoriates the Government for omitting key facts about the Secretary’s actions in this case:
The Government’s only response to these facts is to ignore them–they are not to be found anywhere in the Government brief. The Government instead lauds Secretary Mabus for his “transparency” in “explaining his decision.” Presumably, the Government would similarly laud the convening authority in United States v. Gore, for simply “explaining” to a subordinate that they should not participate as a defense witness based on defense counsel’s conduct. Or the Government would laud the senior staff non-commissioned officer in United States v. Douglas for merely “explaining” to the accused that he should not disrupt daily operations by speaking to his colleagues about becoming defense witnesses.
Reply Br. at 8-9. The reply brief also emphasizes an assertion made in the Appellant’s merits brief: “the integrity of the members’ findings has been compromised.” Reply Br. at 24. This assertion is based on “the lower court and Government’s wholesale adoption of Secretary Mabus’ disregard of the members findings.” Reply Br. at 22. The mere fact that it’s debatable whether the Secretary’s assertions about the facts of this case have outweighed the record of trial itself, is troubling.
There’s already a lot more that could (and should) be written about this case, and I suspect that there will be some fireworks during tomorrow’s oral argument. I hope to write more after listening to the tape.
• NMCCA opinion (Hutchins I) (68 M.J. 623 (2010) (en banc))
• CAAF opinion (Hutchins II) (69 M.J. 282 (2011))
• NMCCA opinion (Hutchins III)
• Appellant’s Brief
• Appellee’s (Government) Brief
• Appellant’s Reply Brief
• Blog post: Argument preview