Chief Judge Effron writes for a unanimous court.

The Judge Advocate General of the Navy certified the case to this Court for review of the following issues: I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS? II. WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVYMARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL? III. WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELL[EE]’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGH TRIAL?

Here’s the basic ruling (error but no prejudice):

For the reasons set forth below, we conclude that: (1) the first detailed military assistant defense counsel did not follow the appropriate procedures with respect to the termination of his participation in the case; (2) the record of trial does not establish a valid basis for such termination under the circumstances of this case; (3) any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to Appellee under applicable constitutional and statutory standards of law; and (4) the circumstances require return of the case to the Court of Criminal Appeals for the completion of review under Article 66, UCMJ, 10 U.S.C. § 866 (2006).

The court applied a “prejudice to the substantial rights of the accused,” not a harmless beyond reasonable doubt for constitutional error – based on the facts of this case.

The stepfather of the five-year-old child who accidentally shot and seriously wounded a Mountain Home high school student in February was convicted of reckless endangerment during a court-martial June 22[,] and sentenced to six month’s confinement and ordered to forfeit $500 pay per month for six months.

SignOnSanDiego reports:

It could have been an awkward, even brutal, first day back at work. But Sgt. Lawrence Hutchins III, the 26-year-old squad leader convicted of masterminding the killing of an unarmed man in Hamdaniya, Iraq, in 2006, said he was welcomed back into his old Camp Pendleton unit Tuesday with handshakes. K.C. Alfred/Union-Tribune

Navy Times reports:

The commanding officer of Norfolk Naval Shipyard has been fired less than one year after assuming command. Capt. William Kiestler was relieved Wednesday. Vice Adm. Kevin McCoy, commander of Naval Sea Systems Command, cited a loss of confidence in Kiestler’s ability to command. There was no mast[.] The loss of confidence stems from “a series of events over the past few months,” Dolan said. Specifically, there was a “failure to ensure critical maintenance work was being performed according to procedure and loss of situational awareness with respect to the status of ongoing submarine projects.”

Military.com reports that:

Marine Sgt. Lawrence Hutchins III put on his uniform and reported for duty Tuesday despite lingering accusations that he killed an unarmed Iraqi man in what became a major war crime case.

Army Times reports:

A lieutenant colonel has been temporarily removed from his leadership post with the North Dakota Air National Guard after being charged with a sex crime. Tom Meyer, 45, is accused of having oral sex with a 16-year-old boy he met online. Meyer voluntarily filed for retirement this past week.

Here is a link to the en banc United States v. Hutchins at NMCCA.

Here is CAAF’s journal entry for the certification for 7 June 2010.

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues: WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS? WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVY-MARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL? WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELLANT’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGHOUT TRIAL? Appellant will file a brief in accordance with Rule 24 in support of the certified issues on or before the July 7, 2010. Appellee will file an answer no later than 30 days after the filing of Appellant’s brief. A reply to Appellee’s answer may be filed by the Appellant no later than 10 days after the filing of Appellee’s answer.

Dwight Sullivan says:

CCA opinions, CAAF has held, are inchoate and need not be given effect for 30 days as the government decides whether to seek reconsideration and the Judge Advocate General decides whether to certify the case to CAAF. But CAAF has also held that when a CCA rules to free the accused, that decision will be given effect in 30 days even if the Judge Advocate General does certify the case. So in the case of a confined servicemember who would be freed as the result of the CCA’s opinion, the government must either release him or treat him as a pretrial detainee, thus providing the right to an IRO hearing. See generally United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).

In Miller the AFTJAG certification included the following issues:

II. WHETHER OPINIONS OF THE AIR FORCE COURT OF CRIMINAL APPEALS ARE SELF-EXECUTING. III. WHETHER, PRIOR TO THE EXPIRATION OF THE TIME PERIOD DURING WHICH RECONSIDERATION CAN BE REQUESTED OR CERTIFICATION BY THE JUDGE ADVOCATE GENERAL SOUGHT, AN AIR FORCE COURT OF CRIMINAL APPEALS OPINION IS “FINAL” OR REMAINS “INCHOATE.” IV. WHETHER ARMY OFFICIALS PREMATURELY SOUGHT TO RELEASE APPELLEE FROM THE UNITED STATES DISCIPLINARY BARRACKS BASED UPON UNOFFICIAL NOTIFICATION BY DEFENSE COUNSEL OF AN INCHOATE, NON-SELF-EXECUTING OPINION OF THE AIR FORCE COURT OF CRIMINAL APPEALS WITH NO DIRECTION FROM A CONVENING AUTHORITY AS REQUIRED BY ARTICLE 66(e), UCMJ.

Miller held that:

The decisions of this Court and the court below are “not self-executing.” United States v. Kraffa, 11 M.J. 453, 455 (CMA 1981)(holding that “[a] decision of the Court of Military Review, 2 however, is not self-executing. The court issues no mandate, but its decision is forwarded to the convening authority for further action.”); United States v. Tanner, 3 M.J. 924, 926 (ACMR 1977) (holding that “neither the decisions nor the opinions of appellate courts, however, are self-executing; cases must be returned to those lower levels where officials and parties can be ordered to implement the court’s judgment”). The Judicial Branch is not an executive arm but depends on the Judge Advocate General and lower officials to execute its orders.

CAAF then discusses what happens depending on what action TJAG decides to take, or not take.

There have been instances in the past where a commander has refused to follow the judicial order to release an accused. See e.g. Frage v. Moriarity.

The release does not mean that Hutchins cannot be re-confined if CAAF reverses NMCCA. In that event the issue will be what credit, if any, he receives for “confinement served” between the date of this release and his being reconfined. The answer may be none.

A Camp Pendleton Marine whose murder conviction was recently overturned was released Monday after serving four years in prison for a major Iraqi war crimes case, his lawyer said. An emotional Sgt. Lawrence Hutchins III vowed to be the best Marine he could be while he waits for the U.S. Court of Appeals for the Armed Forces to review his case, defense lawyer Babu Kaza told The Associated Press after leaving the closed hearing at Camp Pendleton.

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues: WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS? WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVY-MARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL? WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELLANT’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGHOUT TRIAL?

LA Times report.

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.