A military appeals court has thrown out the 2007 conviction of a Marine infantry squad leader accused of murdering an innocent man in the Iraqi town of Hamdaniya. Pvt. Lawrence G. Hutchins III, a former sergeant now serving an 11-year sentence in the military prison at Fort Leavenworth, Kan., will be released from confinement if the Navy does not appeal the court’s Thursday ruling, his attorney, Capt. Babu Kaza, told Marine Corps Times. However, Hutchins also could face a new set of charges if the Marine Corps wants to readdress his case.

In United States v. Hutchins, (en banc) decided 22 April, the court addressed the issue of a defense counsel who is voluntarily leaving active duty. In other words does it make a difference if the severance is a result of the counsel’s personal desire to deploy for the career benefit or to leave active duty to move to a good civilian job, as opposed to the situation where the counsel must leave active duty because there is no longer a contractual relationship or the military says ‘I need you’ in Iraq and there’s no choice?

The issue has been addressed for a defense counsel who wants to remain on active duty to continue the representation. That is OK, so long as there is not contract limitation. The issue has been addressed for a defense counsel who wants to continue representation as a civilian (a post-trial employment ethics issue). That is OK so long as the post-service representation is pro bono.

Dwight “ML” Sullivan points out: United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), petition denied, __ M.J. ___, No. 10-0199/CG (C.A.A.F. Apr. 9, 2010) (that a defense counsel’s six-month deployment to Iraq justified severance of the attorney-client relationship.).

In Garcia the accused objected to severance of the relationship, but the military judge ruled that good cause was shown.

Appellant objected to releasing LT Burgtorf because the new defense counsel had not been present at the Article 32 investigation, which had not been recorded. The military judge found that Appellant had an attorney-client relationship with LT Burgtorf, ruled that good cause had been shown to release LT Burgtorf, and accordingly released him, noting, among other things, that the assistant defense counsel, who remained detailed, had been present at the Article 32 investigation. (R1 at 97-98.)

So, is having more than one counsel a get-out card? And perhaps the guilty plea in Garcia saved the issue for a different case.

What if the remaining counsel is the one who is second chair because they’ve only been a lawyer for a few minutes and it’s the experienced first chair being released. Do we care? Does it matter if the defense counsel is getting orders voluntarily? Should it?

Do we care about what message we send an accused, the military as a whole, the public, about the duties of being a defense counsel?

There are potentially two other perspective to the issue of when counsel can be replaced.

1. I have two appellate cases in which a part of appellant’s IAC claim is that the defense counsel hurried up his case and didn’t properly investigate because they wanted to make a (career enhancing) IA or deployment to Iraq of A/stan.

2. What about lengthy delays caused by the government and needed by the defense to properly investigate and prepare a very complex case. According to Garcia it doesn’t matter. An accused can be forced to change horses in mid-stream.

A great deal of criticism might be given about how NMCCA resolved Hutchins. What I’m afraid of is that people will ignore some genuine systemic problems and issues because they are frustrated with the opinion or the judges who wrote or how they wrote. Hutchins is not an unusual case in the frequency with which defense counsel are being changed out. In the common UA/Missing Movement case a change in counsel is not that hard (except maybe in LTC Lakin’s case). Defending against an unauthorized absence is different from murder. It is the increasingly common complex cases that take time to get to the military justice process and trial where mid-stream changes of counsel can have deletrious effects on a defense.

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The opinion is written by Justice Scalia. Here are the important part of the opinion:

In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation “complete.”

United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006).

There is no harmless error analysis, it is a required reversal.

The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee. See Wheat, 486 U.S., at 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140; Andersen v. Treat, 172 U.S. 24, 19 S. Ct. 67, 43 L. Ed. 351 (1898). See generally W. Beaney, The Right to Counsel in American Courts 18-24, 27-33 (1955). Cf. Powell, supra, at 53, 53 S. Ct. 55, 77 L. Ed. 158. Where the right to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice–which is the right to a particular lawyer regardless of comparative effectiveness–with the right to effective counsel–which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.

Gonzalez-Lopez, 548 U.S. at 147–48.

There is of course a dissent.

Within the military there is no hard and fast rule, and there are certainly cases supporting a denial of civilian, military, or IMC. But, I make these my starting point.

The right to counsel is fundamental to our system of justice. It should therefore be an unusual case, balancing all the factors involved, when the judge denies an initial and timely request for a continuance in order to obtain civilian counsel, particularly after the judge has criticized appointed military counsel. Indeed, we have noted that the right to civilian counsel is a “most valuable right,” and that therefore a continuance should be granted at least after initial requests for such counsel have been made, and certainly in a case where Appellant is unsure of his appointed military representation. Accordingly, we hold that the MJ erred by exercising an inelastic attitude in rescheduling Appellant’s trial, where such request was predicated on judge’s negative comments about Appellant’s original military counsel and Appellant’s subsequent selection of a new civilian counsel.

United States v. Wiest, 59 M.J. 276, 278 (C.A.A.F. 2004)(citations omitted).

Where a MJ denies a continuance request made for the purpose of obtaining civilian counsel, prejudice to the accused is likely.

United States v. Miller, 47 M.J. 352, 359 (C.A.A.F. 1997).

ABSTRACT: In the 2009–2010 term, the U.S. Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but “collateral” consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence—every jurisdiction, that is, except Kentucky. The Supreme Court of Kentucky recently held that when there is no duty to warn about a consequence because it is collateral, misadvice about that same consequence is not a constitutional violation. The collision of the collateral-consequences rule, which imposes no duty to warn, and the affirmative-misadvice exception, which imposes a duty to give accurate advice where a lawyer chooses to warn, leads to a perverse incentive structure that signals to defense lawyers (as well as to prosecutors and judges) that it is safest to say nothing at all about “collateral” matters. The Kentucky approach that the Supreme Court will review is equally troubling; it allows false information with no sanction or remedy. A cluttered and contradictory jurisprudence of informational rights in the guilty-plea process sits at this intersection of the collateral-consequences rule and affirmative-misadvice exception. So-called collateral consequences often overshadow the direct penal sentences in criminal cases. In addition to deportation, courts categorize many other severe consequences as collateral, including involuntary civil commitment, sex-offender registration, and loss of the right to vote, to obtain professional licenses, and to receive public housing and benefits. These consequences touch upon every important area of a convicted person’s life—for the rest of his or her life. They also matter enormously in the United States, which has more than 600,000 individuals exiting the prison system and millions more getting criminal records each year. These individuals enter a society that is struggling to find ways to integrate them despite facing considerable obstacles. The constitutional rule has not caught up to the current reality of the effect of these consequences on defendants, their families, and their communities. The Supreme Court has the opportunity to overcome the mythical divide between direct and collateral consequences and to protect the constitutional and ethical values which underlie a defendant’s right to decide whether to plead guilty based on full knowledge of the material consequences. The Court will consider important issues of professional responsibility, ethics, transparency, and the right to information in the guilty-plea process. This Article exposes the problems with the majority and Kentucky approaches. It argues that only a constitutional mandate that requires a complete and full informational disclosure about the serious collateral consequences of guilty pleas will avoid the problematic incentive structures we have now.

I did not see a reference to Denedo.

Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008), cert. granted, 129 S. Ct. 1317 (2009). Padilla v. Kentucky [link is to SCOTUSWiki] was argued at the U.S. Supreme Court 13 October 2009, the decision is pending.