Military justice blogs are to blogs
as military music is to music.
Comments Off I’m abandoning the podcasting effort for now, due to some technological hurdles that I don’t have the time to figure out. Here’s a rundown of oral argument audio from cases heard in November:
CAAF Arguments:
NMCCA Arguments:
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.
WaPo’s website has this AP article about CAAF’s grant of review in Hutchins.
And here’s a link to North County Times‘ article about the grant.
And here’s a link to a McClatchy article on the grant.
We’ve uploaded the CAAF supp here.
Hutchins is heading back to CAAF. CAAF today granted review of two issues in the case:
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 motuion 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).
United States v. Hutchins, __ M.J. __, No. 12-0408/MC (C.A.A.F. July 2, 2012).
NMCCA’s most recent decision in the case is available here. United States v. Hutchins, No. NMCCA 200800393 (N-M. Ct. Crim. App. Mar. 20, 2012).
Comments Off Opinion here.
Comments Off Thanks to a reader who alerted us to this North County Times article reporting that Lawrence Hutchins III of United States v. Hutchins fame has been denied parole by the Assistant Secretary of the Navy for Manpower and Reserve Affairs. The article reports that Assistant Secretary Garcia rejected the Naval Clemency and Parole Board’s recommendation that Hutchins receive parole.
UPDATE: Here’s a link to an AP article on the Hutchins parole denial.
And here’s a link to the San Diego Union Tribune‘s article.
And here’s a link to the LA Times‘ article.
Here’s a link to a North County Times report that Code 45 alumnus Maj Babu Kaza, USMCR, appeared before the Naval Clemency & Parole Board to argue for parole for his client former Sergeant Lawrence Hutchins III. Hutchins’ appeal has created important rulings regarding termination of representation by detailed defense counsel. See United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010), aff’d in part, rev’d in part, 69 M.J. 282 (C.A.A.F. 2011).
SECNAV’s decision whether to parole Hutchins is expected to be announced in two weeks. As we previously noted here, Naval Consolidated Brig Miramar officials unanimously recommended that Hutchins be paroled.
h/t Phil Cave’s Court-Martial Trial Practice blog
Comments Off We’ve closely followed the case of United States v. Hutchins, in which NMCCA reversed the conviction due to errors in the way one of the trial defense counsel exited the case, only to be reversed by CAAF as to the remedy. United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010), aff’d in part, rev’d in part, 69 M.J. 282 (C.A.A.F. 2011). Hutchins was released from confinement following the NMCCA opinion but was returned to confinement after CAAF’s decision. According to this North County Times report, a parole hearing at Naval Consolidated Brig Miramar has resulted in a unanimous recommendation that Hutchins be paroled. He will have a hearing before the Naval Clemency and Parole Board on 13 July. The article reports, however, that SECNAV has opined in the past that Hutchins should serve his complete sentence.
h/t Phil Cave’s Court-Martial Trial Practice blog
Here is a Marine Corps Times update on former Marine Corps Sgt. Hutchins and his return to the brig to complete his sentence after CAAF reversed the NMCCA’s reversal of his conviction by testing the error in removing the accused’s counsel for prejudice, and finding none.
Comments Off 
After seeing his conviction for killing an Iraqi civilian in Hamdania tossed by the Navy-Marine Corps Court of Criminal Appeals last year, Marine Sgt. Lawrence Hutchins is now preparing to return to confinement. The Court of Appeals for the Armed Forces reinstatedthe conviction that the Navy-Marine Corps Court vacated, overturning the service court’s presumption of prejudice due to finding Hutchins’ attorney-client relationship with one of his trial defense counsel was improperly severed just before the court-martial began.
Here. Chief Judge Effron wrote for a unanimous court, affirming NMCCA’s opinion in part and reversing in part. CAAF held that the erroneous severance of counsel could be tested for prejudice and, finding none, held the error to be harmless.
Comments Off Here’s a link to the government’s opening CAAF brief in Hutchins. And here’s a link to the defense’s CAAF brief. Here’s a link to the government’s reply brief. Here’s a link to the Coast Guard Government Appellate Division’s amicus brief. And here’s a link to the Air Force’s amicus brief in support of the government.
The San Diego Union-Tribune has an interesting piece on Marine Sgt. Lawrence Hutchins, here, detailing his return to his Marine Corps unit after four years in the brig. The story is similar to a North County Times piece that we linked to here and details his life after being released at an IRO hearing pending review of his case by CAAF. We covered why he was entitled to a pre-trial confinement hearing here.
We’ve been following the case of Sgt Hutchins, whose conviction was thrown out in an en banc NMCCA opinion holding that one of his military defense counsel had improperly withdrawn from his case. That decision has been certified for review by CAAF. Here’s a link to a North County Times article about Sgt Hutchins’ experiences since he was ordered released as the result of an IRO hearing in the wake of NMCCA’s ruling.
Comments Off The Marine Corps Times reports here that Marine Sergeant Lawrence Hutchins has been released from the brig, apparently after an IRO hearing. (h/t Phil Cave’s Court-Martial Trial Practice blog)
After the Navy-Marine Corps Court sitting en banc reversed his findings and sentence due to one of Hutchins’ military defense counsel’s improper departure from the dcefense team, 68 M.J. 623, the Judge Advocate General of the Navy certified the case to CAAF for further review.
CCA opinions, CAAF has held, are inchoate and need not be given effect for 30 days as the government decides whether to seek reconsideration and the Judge Advocate General decides whether to certify the case to CAAF. But CAAF has also held that when a CCA rules to free the accused, that decision will be given effect in 30 days even if the Judge Advocate General does certify the case. So in the case of a confined servicemember who would be freed as the result of the CCA’s opinion, the government must either release him or treat him as a pretrial detainee, thus providing the right to an IRO hearing. See generally United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).
