CAAF decided United States v. Hutchins, No. 12-0408/MC, 72 M.J. 294 (CAAFlog case page) (link to slip op.), on June 26, 2013, finding that the Naval Criminal Investigative Service (NCIS) unlawfully reinitiated communications with Appellant after he requested an attorney, leading to a confession that was erroneously admitted at trial, and that the error was not harmless beyond a reasonable doubt. CAAF reverses the trial military judge’s ruling admitting the confession and the Navy-Marine Corps CCA, and sets aside the findings and sentence. The court does not reach the second issue, which questioned whether the Secretary of the Navy’s post-trial remarks constitute unlawful command influence.
Judge Erdmann writes for the court, joined by Judge Stucky and Senior Judge Effron. Judge Ryan writes separately, concurring in the result and also addressing the Secretary’s comments and finding that they resulted in the appearance of unlawful command influence. Chief Judge Baker dissents, finding no error in the admission of Appellant’s confession because he initiated the communication with NCIS, and finding that Appellant failed to meet his burden to show “some evidence” of unlawful command influence.
Appellant, Sergeant Hutchins, U.S. Marine Corps, 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. Appellant’s conviction resulted from his participation a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the “Hamdania incident.” He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The Convening Authority disapproved the reprimand and all confinement in excess of 11 years.
This case was at CAAF for the second time. The first time, CAAF reversed in part a decision of the NMCCA (Hutchins I) that set-aside the findings after the CCA determined that Appellant’s detailed defense counsel was improperly released from the representation upon his end of active service. The CCA’s opinion resulted in Appellant’s brief release from confinement. After CAAF’s ruling reversing the CCA (Hutchins II), Appellant was returned to the brig, and the case was returned to the CCA for further consideration. On remand, the NMCCA affirmed the findings and sentence (Hutchins III). CAAF then granted review of two issues, both of which were considered by the NMCCA in Hutchins III:
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).
In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Supreme Court explained that once an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” A few years later, in Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the Court distinguished between communications that would lead to a “generalized discussion relating directly or indirectly to the investigation,” which constitute a reinitiation of the interrogation and are the focus of the Edwards rule, and mere “inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship,” (like a request for a drink of water) which are not a reinitiation.
In this case, Appellant was interrogated by an NCIS agent after being advised of his rights, and he asked for an attorney. The interrogation was stopped, and Appellant “was confined to a trailer under guard where he was held essentially in solitary confinement and was not allowed to use a phone or to otherwise contact an attorney. The Government conceded that these conditions were restriction tantamount to confinement. However . . . the Government made no effort to secure an attorney for [Appellant] during this period.” Slip op. at 6. After a week under these conditions, the same NCIS agent asked Appellant for permission to search his belongings and provided Appellant with a search authorization form. While reading this form, Appellant asked if he could still give his side of the story. The next morning he was brought to the NCIS office, and re-advised of his rights. Appellant then waived his rights and made a detailed confession.
The confession was admitted into evidence at trial, over Defense objection and after extensive litigation that included testimony from the NCIS agent and an affidavit from Appellant. The CCA affirmed this decision, finding that: “The facts as developed at trial do not indicate that NCIS agents approached the appellant for the purpose of reinitiating a custodial interrogation. Rather, their purpose was to inquire into obtaining authorization to search for evidence in the appellant’s belongings.” Hutchins III, Slip op. at 16. But Judge Erdmann and the majority see the facts differently:
The NCIS investigator was forthright in his testimony that he initiated contact with Hutchins on May 18 to further the investigation. . . . This request for consent to search by the NCIS initiated a generalized discussion which related directly to the ongoing investigation as contrasted to a bare inquiry about routine incidents of Hutchins’s custody.
Slip op. at 11-12. And that’s it. In less than six pages of discussion, Judge Erdmann concludes that, “Hutchins’s subsequent May 19 statement was a direct result of the reinitiation of communication by NCIS.” Slip op. at 13. A footnote provides a little more clarity:
Although a request for consent to search is not in itself an interrogation under Frazier, we do not agree with the dissent’s suggestion that such a request has no bearing on the separate legal question as to whether, under all the surrounding circumstances, the Government reinitiated a communication under Edwards and Bradshaw. In this case, for example, the communication was more than a simple request for consent to search, but instead included an implicit accusatory statement.
Slip op. at 13 N.10 (emphasis added) (citation omitted). The “implicit accusatory statement” isn’t specifically identified, but there’s really only one thing it could be: When Appellant was asked for permission for the search of his belongings, he was given a form that re-advised him that he was suspected of conspiracy, murder, assault, and kidnapping. That advisory, plus the request for a search, plus the circumstances of Appellant’s confinement in the trailer, amount to a “reinitiation,” finds the majority.
And, because “[t]he Government made use of Hutchins’s detailed statement in its opening statement, closing argument, and rebuttal argument and as evidence to corroborate other evidence and to attack the opinion of the defense expert witness,” the majority cannot say that its admission was harmless. Slip op. at 13-14. Because the court sets aside the findings based on an error at trial, it does not need to reach the question of whether the Secretary of the Navy’s comments about this case constitute unlawful command influence, and the majority seems relieved by that fact. Judge Erdmann’s opinion doesn’t even discuss the factual basis for the claim of unlawful command influence (strong public language about the case from the Secretary of the Navy).
But Judge Ryan, who concurs in the result, doesn’t seem relieved at all. First, she sees the reinitiation issue as “a close question,” and she poses it differently from the majority:
[W]hether, under the circumstances, NCIS should have known that its reinitiation of contact with Appellant, made for any purpose, was reasonably likely to elicit an incriminating statement in violation of Edwards. The military judge did not consider this question, which is different from whether law enforcement was engaged in intentional subterfuge.
After considering the facts outlined above, and that the prosecution has the burden to “demonstrate by a preponderance of the evidence that [Appellant] initiated the communication leading to the waiver,” [Mil.R.Evid.] 305(g)(2)(B)(i), I resolve this close question in Appellant’s favor.
Con. op. at 5. She then tackles the issue of unlawful command influence in the Secretary of the Navy’s post-trial statements:
Appellant was convicted of unpremeditated murder. In November 2009, despite both ongoing appellate review and the annual Naval Clemency & Parole Board (NC&PB) review process, the Secretary made widely disseminated, public comments, which left no doubt about his strong view that Appellant had already received substantial clemency from the convening authority and would receive no further clemency. Moreover, despite the fact that Appellant was acquitted of premeditated murder, the Secretary emphatically stated that Appellant had committed that crime.
Con. op. at 7-8. Judge Ryan goes on to detail a number of particular statements, including the Secretary’s comment that Appellant received “substantial clemency already,” when the Convening Authority approved only 11 of the adjudged 15 years of confinement. Con. op. at 8. But then the NC&PB, “which had previously recommended that Appellant receive a six-year reduction in his sentence, recommended that he receive no clemency or parole at all.” Con. op. at 8. That’s something of a smoking gun.
In Judge Ryan’s view, “the Secretary’s disturbing and inappropriate comments created an intolerable strain on public perception of the military justice system.” Con. op. at 10 (marks and citation omitted). She notes that the intent of the Secretary isn’t the issue, particularly when considering his actions from the perspective of a disinterested member of the public:
The focus of apparent unlawful command influence is whether a reasonable, disinterested member of the public, fully informed of all the facts, would perceive the military justice system as fair.
Con. op. at 6. But Judge Ryan also acknowledges that the NC&PB is only a tool to assist the Secretary in his discretion, and CAAF is limited in its ability to fashion a remedy for an error in clemency and parole proceedings that “are not part of the trial — or even of the adjudicatory process.” Con. op. at 11 (quoting Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 284 (1998)). She frankly acknowledges that CAAF is “not, however, in a position to repair this damage.” Con. op. at 10. But she concludes:
We cannot decline to criticize the Secretary for making the remarks he made, and by implication lend our own judicial imprimatur to the civilian leadership’s making of such public statements about cases where neither appellate review nor the clemency process are complete.
Con. op. at 11-12.
And then we have Chief Judge Baker’s dissent, which fills 41 pages of text (where the majority and concurring combined are less than 27 full pages). He strenuously disagrees with the rest of the court on the reinitiation issue, noting that “the military judge found that ‘the agents strictly restricted their contact with the accused to the request for permissive authorization for a search of his belongings’ and ‘the government did not seek to discuss the case with the accused further.'” Diss. op. at 8. He sees the majority as wrong on the law:
The majority conflates the two doctrines and interprets Edwards and Bradshaw as barring the authorities from initiating not only any words or actions that are reasonably likely to elicit an incriminating response, but any communication which has the result of leading directly or indirectly to discussion of the investigation. Moreover, in this case, the military judge found that the communication in question was no more than a request to search, a well-established exception to the Edwards rule. See infra pp. 9-15. The majority fails to cite any authority to support such an expansion of the Edwards and Bradshaw doctrines, in direct opposition to the case law of this Court and the federal courts of appeals.
Diss. op. at 7, N.2. Chief Judge Baker would find that the military judge did not err, and that Appellant’s confession was properly admitted into evidence.
Addressing the unlawful command influence issue, Chief Judge Baker focuses on the “due process error of constitutional dimension” aspect of claims of unlawful command influence. Diss. op. at 27 (quoting United States v. Biagase, 50 M.J. 143, 149-50 (C.A.A.F. 1999)). Based on this framework, the Chief Judge observes that the court “has applied an Article 37-based analysis to prohibit unlawful command influence by civilians who are in positions of authority in the military civilian hierarchy, but not subject to the UCMJ.” Diss. op. at 28. So he finds that the Biagase framework is applicable against the Secretary of the Navy in this case. But he finds that Appellant has failed to meet his burden under Biagase to present “some evidence” of unlawful command influence:
The problem for Appellant with respect to this allegation of unlawful command influence is that, as previously discussed, he has not shown “some evidence” that the Secretary’s comments influenced or appeared to influence, let alone unlawfully influenced the CCA, which overturned the findings and sentence, or the Judge Advocate General’s decision to certify the case to this Court. With respect to the Secretary’s NC&PB clemency process, exercised during direct review, the Appellant has not produced “some evidence” that the Secretary acted in a manner that was contrary to regulation, arbitrary and capricious, in violation of constitutional principle, or that unlawfully influenced a member of the NC&PB. The record also does not support apparent unlawful command influence. A disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. See Lewis, 63 M.J. at 415. This is especially so given the independent nature of the CCA’s review as well as the subsequent independent review by this civilian Court.
Diss. op. at 41.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis