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

14 Responses to “In the CAAF – Hutchins”

  1. Peanut Gallery says:

    Wow. Congrats to Maj Babu Kaza on a huge win. 

  2. Mack says:

    Would someone please provide some Bluebooks and Redbooks to the CAAF clerks?  It’s very clear that they have no sense of signals in citations.  Direct cite on p. 10 to Edwards at 485 includes that language, but does not stand for that proposition.  (Even if it did, the cite would be to 484-85.)
    Also, on p. 10, the citation to Bradshaw is woefully misleading.  Again, direct cite (p. 1045) and it identifies two categories of communication among law enforcement and accuseds.  But that’s not what the Court says.  The Court said:
    There are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards.
    CAAF appears to create a false dichotomy out of Bradshaw.  Even if could arguably be read accordingly, there is no reasonable claim that the Court said that directly.  And it is crucial language in the decision because, upon that keystone, the Court concludes that because a request for search authorization is not the same as an inquiry about water’s desirabitilty, it must by elimination be an Edwards-implicating conversation.
    Where, as here, you’re quoting partial phrases in such a way that the reader infers that the source document stands for that proposition, you should make sure that it does.  If it does not, you need to indicate that to your reader.  CAAF decisions are far too important to too many people to play loose with authorities or citations thereto.
    On the merits, not a fan.  NCIS said they were asking for search authorization to further the investigation.  I’m okay with that because I read that to mean that getting search authorization and access to that property would be beneficial to the investigation.  If, on the other hand, the evidence was that NCIS delayed requesting search authorization until the 7th day for the purpose of softening his resistance or that NCIS anticipated that, after that time in the “can,” any communication with him would inspire him to confess, there’s a much stronger case.

  3. Christopher Mathews says:

    @ PG –  It is a huge win for the defense.  The government’s calculation as to whether a retrial will be possible is going to be interesting.
    I found Judge Ryan’s comments on command influence interesting, given the still-pending decision in Salyer .. not that there’s much profit in reading tea leaves.

  4. Contract Lawyer says:

    Obviously there is a chance of a re-trail, but I am more interested in some of the tangential impacts of this decision.
    Will Hutchins get back pay?  Or put another way, will he and his family be getting a balloon pay check for all of the missed pay and allowance that he would have received during the period of confinement? 
    He had his brief reprieve and may have gotten back pay for that.
    If he is not re-tried, he may also be eligible for promotion due to the missed promotion opportunities.  This could include more than one promotion and also back pay for the promotions. 
    This is not relevant to the issues of the case, though this is something I think about when I see a case reversed. 

  5. Zachary D Spilman says:

    Back pay (allowances, promotion, etc.) depend on the final approved sentence, if there is a final approved sentence, and whether that sentence is less than the punishment (i.e., confinement) actually served.

    While the regulations are complicated, an overly-simplified explanation is to take the sentence actually served, subtract from that the sentence finally approved, and then give pay and allowances for the difference. Again I note, this is an over-simplification, but it’ll put you in the right ballpark.

  6. Butters says:

    As a person with no law training, I find it surprising (and this is my interpretation) that the CAAF seems to say that the only way that SECNAV could have committed UCI is for him to have said that there would be some type of consequences if things didn’t go a certain way.
    So a Commander may tell his troops not to testify for the accused as long as he doesn’t directly say that there will be specific consequences if they do so? Are they saying that UCI has to be a direct threat? Why not allow accused service members to have their cases tried in the civilian courts as a test?
    Military flag officers are taught that there words matter. There are anecdotal situations where a flag officer has mad a negative remark such as, “This carpet is ugly” and his subordinates took that to mean “we should replace the carpet”. I guess words mattered in 2008, but they don’t now.
    It appears to me that they are setting up this argument to overturn the Judge’s UCI ruling regarding the President’s comments. I think words matter and no panel member or convening authority will ever admit that they were influenced by the press, members of Congress, the President, or the Service Secretaries.
    “Don’t tell me words don’t matter. ‘I have a dream’ – just words? ‘We hold these truths to be self-evident, that all men are created equal’- just words? ‘We have nothing to fear but fear itself’ – just words? Just speeches? – Barack Obama, February 16, 2008

  7. Mike "No Man" Navarre says:

    Hold the horses on the back pay.  I’d say Hutchins just put Code 46 back in the runnig for a second Golden CAAF.

  8. RY says:

    No Man – you think?  The issue here does not strike me as far reaching enough for SCOTUS.  Admittedly, I haven’t done enough Ewards/Frazier research to see how the circuits are doing here but absent some split, this seems too case specific/fact specific to draw SCOTUS attention.  To be sure, I can see how reasonable minds may disagree on whether the statement was sufficient, but it’s got military-specific facts, 4-1 opinion and does not seem to draw a broad enough sword for SCOTUS appeal IMHO.

  9. k fischer says:

    Hutchins gets 1 defense appellate attorney vs. Code 46’s 3 military attorneys and one civilian?  Great job, Maj. Kaza!

  10. stewie says:

    I would be surprised if app def counsel didnt have the full support of his entire office in writing and prepping the brief, same as gov app counsel.  I’m also sure there was only one person talking for both sides on the day the case was briefed.
    I don’t think we have much of an underdog scenario between sides at the appellate level these days.  That doesn’t mean MAJ Kaza did not do a great job, anytime you get this result for the accused as an appellate defense counsel, it’s pretty darn great, but let’s not make it something it isnt.

  11. Charlie Gittins says:

    Not so fast on the back pay . . .   You basically have to go back to the BCNR to get it.  “Restoration” means you have to extract every penny and every right forfeit as a result of the conviction, not that they are going to do it automatically.  In fact, the Marine Corps has thrown up every possible roadblock.   Going through this right now with a client.  We’re off to the Court of Federal Claims for both the lost pay and the money he is due for being wroingfully convicted. 

  12. RY says:

    Incidentally, did anyone see Manning foreshadowed in the UCI piece?  I felt like Baker could have been writing about the Manning case even though this was U.S. v. Hutchins. 

  13. Contract Lawyer says:

    Good luck with that Charlie. I am not suggesting the allowance of back pay is a travesty, but rather I am acknowledging that I believe it is due and should be resolved at the unit level.  In addition, the service member should be considered for any missed promotions and also be granted any pay difference on that adjustment.  The back pay should be paid even if the accused is re-tried, but promotions would only be due if the accused is fully cleared (ends the process without a conviction).  Just my opinion.  If you know of any published COFC cases, I would love to read them. 

  14. Contract Lawyer says:

    Need one more comment to move this off of 13.