According to a Los Angeles Times report available here, the Government has failed to compel five witnesses to testify during the retrial of Marine Sergeant Hutchins:

Dspite offers of immunity from prosecution, four ex-Marines and a former Navy corpsman have refused to testify against Sgt. Lawrence Hutchins in his retrial in the 2006 killing of an Iraqi.

The five — all of whom were convicted in the killing and served time in the brig — asserted their 5th Amendment right against self-incrimination during the court martial last week at Camp Pendleton.

Undeterred, the Government presses on:

Over [the defense counsel’s] objection, the judge ruled that the prosecution could submit as evidence verbatim transcripts of the squad members’ previous testimony.

26 Responses to “Hutchins retrial plagued by immunity issues”

  1. MD11 says:

    Why am I NOT surprised the other criminals involved in Hutchins’ case have bailed out on testifying? Considering the scheme they came up with, their willingness to do it, and the stain they left on their respective services’ reputations, those guys are probably trying to hide as far away as possible.

    An absolute textbook murder conspiracy and somehow, Hutchins and his squad are walking free. They all should be locked up for a long, long time.

  2. Monday morning QB says:

    Not sure how one takes the 5th for something they already have been prosecuted for; how can anything they say be used against them in a future prosecution?  MD11 hits it on the head.  These guys are true war criminals and the coddling of Hutchins and making him and his ilk out to be some sort of heroes is ridiculous.  They executed a civilian to send a message to insurgents to stop being insurgents?  Awesome logic, because this case does more to inflame the jihadist movement than GITMO ever could. 

  3. Not So Disinterested Observer says:

    It is a fact that NCIS ham-fisted the investigation from the beginning (See, e.g. United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013)). As part of their long-historied Keystone Kops antics, NCIS coerced admissions/confessions, kept over 3,000 pages of discovery from each accused until over 8 years after the fact, and generally played to NCIS’ strengths — which is intimidation and failure to follow the law, especially in high-profile cases.
    The government was aware, prior to trial, of the claim that (at least some of) the squad members’ confessions were coerced. So, it is not too hard to comprehend that after the passage of time and the loss of the Marine Corps’ ability to pressure them into keeping with their original coerced statements, that the squad members’ testimony at the rehearing might be different. And that their actual recollection of the facts would be so different in order to trigger possible perjury charges for their initial testimony/statements. However, the government was not willing to give them transactional immunity, despite each one of them was already convicted and served their punishment. MD11 says: 

    “An absolute textbook murder conspiracy and somehow, Hutchins and his squad are walking free. They all should be locked up for a long, long time.”

    As one of my learned colleagues once told me, “never assume a government conspiracy when it can be chalked up to incompetence.” Here, that rings true but with a slightly different take:  the alleged conspiracy to not testify isn’t between the squad members and Sgt Hutchins, but their inability to testify can be attributed to government incompetence.
    Vitriol aside, riddle me this Monday Morning QB and MD11 – if you’re the attorney for one of the squad members, why on earth would you NOT advise them to invoke their 5th Amendment rights?
     
    P.S. I’m not going to take the bait re: the comparison of one incident – even assuming it was murder of an innocent Iraqi by a rogue squad – and years of government-sanctioned torture/abuse at GTMO and black sites.

  4. Lieber says:

    Someone must still be really upset over GoT last night, cause this is crazy talk “…this case does more to inflame the jihadist movement than GITMO ever could.”  everyone (worldwide) knows about GITMO (or thinks that they do), no one knows about Hutchins.  Even in Iraq the name recognition for GITMO is a 100 times greater.
    as for taking the 5th…oh I don’t know…I’m sure there were related crimes that they weren’t tried for the first time.  any decent TC could come up with 15 specs of a situation such as this.  and perjury or obstruction are the easiest potential ones to invoke for.
    you know, there’s actually case law on the subject that you could look up

  5. k fischer says:

    Lieber,
     
    Great point. I would like at the charge sheet of the other five or so guys to see if they were titled or charged with a 107 offense.  If they were, then perhaps they learned what too many unfortunate people who gave up the only right you retain when you join the Army has:  If you say anything, it will be twisted and used against you.  They already believe you did something, so the only thing that happens if you make an exculpatory statement is that they will add a false official statement charge to your charge sheet.

  6. k fischer says:

    And by “Army,” I meant “Military” to encompass all Servicemembers, including Marines such as Sgt. Hutchins.  My apologies to all the Marine JAGs…..I mean Marine Judge Advocates who grimaced when they read the previous posts.

  7. stewie says:

    Since clearly calling the Marines special has hit such a nerve, let me clarify for everyone.
     
    I don’t think Marines aren’t “real JAGs” or that they are “lesser JAGs” I simply think their model of infantryman first, lawyer after does not fit the model for the other services. I’m somewhat boggled by why that’s considered a slam on Marines or a controversial statement.

  8. Jack Burton says:

    Taking refuge under the 5th Amendment is an easy call.  Assuming their appellate cases are not complete, then their punitive discharges are likewise not complete.  Therefore they are subject to recall from appellate leave.  No brainer in my book.  I had a client with a similar issue; dead person, my guy on appellate leave, and the G thinks he is the culprit.  They were too stupid to recall him from appellate leave so I told him to invoke during the trial of another party to the death. 
    Of course this all assumes the punitive discharges are not final.  It ain’t over till its really over.  Was it over when the Germans bombed Pearl Harbor?

  9. k fischer says:

    Stewie,
     
    Actually, Marines aren’t real “JAG’s.”    They are Judge Advocates.  I forget why Marines are not Judge Advocate Generals, but I had it explained to me by a Marine Judge Advocate that he was a Marine Judge Advocate and not a “Marine JAG,” and if I ever called him or one of his fellow Marine Judge Advocates a “Marine JAG” again, then he would surely punch me in the nose. 

  10. Alfonso Decimo says:

    As I recall, the error in this case was the failure by a defense counsel to secure his client’s consent to withdraw and not an excessive zeal by investigators.
    Also, I was amused that Stewie misunderstood KFisher’s post as a continuation of another thread.

  11. Not So Disinterested Observer says:

    Alfonso Decimo, the improper withdrawal was one issue; however, the other issue that ultimately overturned the findings/sentence was NCIS’ failure to honor Sgt Hutchin’s invocation of his rights prior to making a statement.  
     
    Additionally, while not part of the CAAF opinion, agents intimidated and made threats against each of the accused, to include threats against family, to improperly induce confessions/admissions along with other improper actions regarding the “investigation.” This was never an investigation; rather an attempt at confirmation of suspicions. They disregarded evidence at the scene, failed to fully address officers’ involvement, and generally made leaps of logic to support their suspicions.  Ask anyone who saw SA Connolly’s testimony in the recent rehearing and you’ll get the same impression:  Keystone Kops.

  12. Alfonso Decimo says:

    NotDisinterested – Thanks. I just reviewed the opinion and yes, CAAF determined NCIS should not have reinitiated communications with the accused, but I am more persuaded by Judge Baker’s dissent, which is based on the trial judge’s findings of fact. I also remember reading that NCIS originally doubted the Iraqi civilians and that the investigating agent had over 20 years of experience.  I think much of the vitriol against NCIS comes from a documentary and other sources that require some critical thinking and skepticism as you consume them.

  13. Steve Newman says:

    Not to detract from a serious discussion about an important subject by accomplished scholars, but @k fisher, your explanation about Marine Judge Advocates, so accurately explained 13 years after we parted ways, informs the efficacy of my method. 

  14. Charlie Gittins says:

    Dinosaur checking in again.  NCIS is the JV of mall cops.  They can’t investigate out of a paper bag without a confession.  I caught them in an illegal wiretap when I was a 1st year DC in Okinawa and it wasn’t like I needed the FBI to help me.  My client was acquitted.  NEVER, EVER, cooperate with NCIS.  They are wannabees who attended the school for retarded wannabee cops at Kingsport, GA.   That is all.
     
     

  15. k fischer says:

    You’re a lousy f***ing softball player, Steve! 
     
    b/t/w, shouldn’t it be “Steph” for Stephen?  Since you have yet to make it to Columbus for the past 13 years, I’ll just go ahead and punch myself in the nose for that one since I truly deserve it and nobody makes me bleed my own blood. 

  16. Tom Booker says:

    It is a little off topic, but to build on k fischer’s answer to stewie, or perhaps to fill in some knowledge gaps, I respectfully invite everyone’s attention to Article 1, UCMJ, 10 U.S.C. section 801.  “Judge advocates” are the licensed, uniformed attorneys who comprise the corps under the leadership of a Judge Advocate General.  The Army has a Judge Advocate General, a Lieutenant General who serves as the senior uniformed attorney and advises the Secretary of the Army and the Chief of Staff of the Army as appropriate on legal matters.  The Air Force has a JAG, also a Lieutenant General.  The Navy has a Judge Advocate General who oversees the judge advocates of both the Navy and the Marine Corps.  If the JAG is Navy, then the grade is Vice Admiral; if the JAG is Marine, then the grade is Lieutenant General.  Many years ago, the Coast Guard had “law specialists,” and by statute the JAG was the General Counsel of the Department of Transportation.  Neither the designation as “law specialist” nor the situation in the Department of Transportation is the case today.  Today, Coast Guard uniformed attorneys are also “judge advocates,” and their Judge Advocate General is a Rear Admiral appointed by the Secretary of Homeland Security (who is both a cabinet officer, like the Secretary of Defense, and a service secretary, like SECNAV).
     
    I realize that some of this is an oversimplification — it does not take into account the various wiring diagrams that affect individual officers, for example — but that is why everyone starts out as a Judge Advocate, not as a JAG.
     
    Respectfully, LTB

  17. Ganthet says:

    Just to pile on and beat the dead horse at the same time – to summarize Tom Booker’s post – there isn’t a Judge Advocate General of the Marine Corps. The only Judge Advocate General of the Navy that was ever a Marine was the very first, Col William Remey. The Marines call their JAG Corps the Marine Corps Judge Advocate Division, despite being headed by a 2-star.

    The Marines. Semper special.

  18. Jeff says:

    I think part of the difference with the Marine Corps is that they have the operational focus. Not only is every Marine a rifleman first, but their top judge advocate is not a the “Judge Advocate General of the Marine Corps” but is the “Staff Judge Advocate to the Commandant of the Marine Corps.” Since they don’t have a JAG, it would be somewhat nonsensical for them to be called JAGs.

  19. k fischer says:

    Tom,
     
    Do the Marines have a JAG Corps?  I hazily recall through a soju brain fog Col. Newman after his terroristic threat to punch me in the nose.explaining to me that because the Marine Corps already is a Corps that they don’t have a JAG Corps.   They just have Judge Advocates.  And, the reason the Army, Navy, and Air Force can refer to themselves as JAG’s is because they are a part of the Judge Advocate General’s Corps, which the Marines do not have because they are already a Corps.  Then, I hit a double, a single, and a double bulls eye and beat him as always.

  20. Captain Haddock says:

    Marine judge advocates are also unrestricted line officers who can transfer to other ground MOS’s, though it’s very rare in the active duty world (usually only transferring into MARSOC). I’ve seen judge advocates become infantry, artillery, and civil affairs officers during the transition from active duty to the reserves.

  21. Tom Booker says:

    I pity this poor, dead horse.
     
    I meant to say “Department of the Army,” “Department of the Air Force,” and “Department of the Navy”.  I know that a SECNAV some time back proposed renaming it “Department of the Navy and Marine Corps,” and in my service lifetime we saw a change from “Navy Achievement” and “Navy Commendation” medals to “Navy and Marine Corps AM” and “Navy and Marine Corps CM”.  I’m so old that all my Navy Coms were actually Navy Coms.
     
    Capt Haddock has a good observation.  Some years back, all Marine judge advocates (MOS 4402) were required to obtain a secondary MOS (this requirement for a secondary MOS actually applied to all Marines).  For those judge advocates who had not previously served as combat arms officers, the usual fields were logistics and planning.
     
    Army, Navy, and Air Force attorneys who refer to themselves as JAGs are being sloppy.  The services used to pride themselves on attention to detail.
     
    To respond to Jeff:  Every judge advocate should have an operational focus.  The judge advocates exist to serve the fleet, not the other way around.
     
    Respectfully, LTB

  22. Ed says:

    Captain Haddock I could be wrong but no Marine Officer is permanently MARSOC. I believe it is a four year tour followed by a transfer back to MOS. 

  23. Captain Haddock says:

    Ed, I think you’re right about that at the moment, but a lot of pieces are shifting and changing.  For example, my understanding (read: my conjecture based on rumor and innuendo) is that lieutenants can now be selected for MARSOC right out of TBS.  Back in my day, the Old Corps (TM), you had to be a captain or captain-select to apply. 

  24. John O'Connor says:

    I was a Marine judge advocate, but I use the term JAG when telling people what I did my last tour in the Marine Corps because (1) they will then know what I mean, and (2) I view judge advocate and JAG as basically interchangeable terms.

  25. stewie says:

    I like to call myself an advocate general, just to be different.

  26. J.M. says:

    It appears that the JAG vs SJA vs JA vs etc seems like the lawyer version of the .45 vs 9mm aurgument.