CAAFlog » September 2012 Term » United States v. Hutchins

This week at SCOTUS: The petition in Brown was denied on December 13. Also on the 13th, the extended deadline for the United States to file a cert petition in Hutchins (CAAFlog case page) passed with no petition. The remaining two petitions are scheduled for conference on January 10. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 13, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 9, 2014.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments. However, I’ve been informed that the oral argument in the en banc reconsideration of the capital case of United States v. Witt, No. 36785 (discussed in this post), has been rescheduled for late January.

This week at the CGCCA: The Coast Guard Trial Docket shows one scheduled oral argument at the Coast Guard CCA, on January 9, 2014.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF’s daily journal for yesterday has this entry:

No. 12-0408/MC.  U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.  On consideration of Appellee’s petition for reconsideration of this Court’s decision, and Appellant’s motion to issue the mandate of the Court forthwith, it is ordered that Appellee’s petition for reconsideration be, and the same is, hereby denied, and Appellant’s motion to issue the mandate of the Court forthwith be, and the same is, hereby granted.

And:

MANDATES ISSUED

No. 12-0408/MC.  U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.

Here are the Government’s petition for reconsideration, Appellant’s answer, and a motion by Appellant asking CAAF to issue its mandate forthwith.

The Government’s petition concludes:

In summary, the Supreme Court has consistently held that Edwards and its progeny are intended to apply a clear, bright-line prophylactic rule “to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Minnick, 498 U.S. at 150. In this case, not only was Edwards not violated, but there is no evidence of badgering, coercion, or any other improper influence upon Appellant by the police or other Government representatives. On the contrary, Appellant clearly demonstrated a desire to “tell his side of the story,” and persisted in this desire after sleeping on his decision overnight. (J.A. 128.) This reinitation was voluntary, and his subsequent waiver of his right to counsel was knowing and intelligent. This Court should therefore reconsider its application of Edwards, assess the facts and circumstances surrounding Appellant’s subsequent waiver, and affirm the decision of the Court below.

Appellant’s response is, in a word, blunt:

The Government’s Petition for Reconsideration, in direct contradiction to Buber and Rule 32, simply restates arguments already presented and rejected by this Court. Indeed, Petitioner fails to even make a prima facie claim that it is offering new argument, and never specifically alleges that this Court “misapprehended” or “overlooked” facts or law. C.A.A.F. R. 32. This Court should therefore summarily dismiss the petition for non-compliance with Rules 31 and 32.

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).

Read more »

United States v. Hutchins is out.  I’m sure Zack will have some pithy analysis soon.

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.

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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 hereUnited States v. Hutchins, No. NMCCA 200800393 (N-M. Ct. Crim. App. Mar. 20, 2012).

Opinion here.

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

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.

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.