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.
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