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UNITED STATES, Appellant
v.
Lawrence G. HUTCHINS III, Sergeant
U.S. Marine Corps, Appellee
No. 10-5003
Crim. App. No. 200800393
United States Court of Appeals for the Armed Forces
Argued October 13, 2010
Decided January 11, 2011
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Colonel Louis J. Puleo, USMC (argued); Captain
Mark V. Balfantz, USMC, and Brian K. Keller, Esq. (on brief).
For Appellee: Major S. Babu Kaza, USMCR (argued); Captain
Jeffrey R. Liebenguth, USMC (on brief).
Amicus Curiae for the United States Coast Guard Appellate
Government Division: Lieutenant Commander D. K. Daniels (on
brief).
Amicus Curiae for the United States Air Force Appellate
Government Division: Captain Charles G. Warren and Gerald R.
Bruce, Esq. (on brief).
Military Judges: Jeffrey G. Meeks (trial), T. J. Sanzi (DuBay
hearing)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hutchins, No. 10-5003/MC
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellee, contrary to his pleas, of
conspiracy, making a false official statement, unpremeditated
murder, and larceny, in violation of Articles 81, 107, 118, 121,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. Ā§Ā§ 881, 907,
918, and 921 (2006). The sentence adjudged by the court-martial
included a dishonorable discharge, a reprimand, confinement for
fifteen years, and reduction to pay grade E-1. The convening
authority approved only so much of the sentence as provided for
eleven years of confinement, reduction to pay grade E-1, and a
dishonorable discharge.
On appeal, the United States Navy-Marine Corps Court of
Criminal Appeals focused on the process by which one of
Appelleeās three defense counsel terminated his participation in
the case. United States v. Hutchins, 68 M.J. 623, 624 (N-M. Ct.
Crim. App. 2010). The court determined that the record did not
adequately address this issue, and returned the record for a
limited post-trial factfinding hearing under United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R 411 (1967). See Hutchins, 68
M.J. at 624. After reviewing the initial record of trial and
the record of the post-trial factfinding proceeding, the Court
of Criminal Appeals concluded that procedural error had occurred
in the termination of the attorney-client relationship. Id.
2
United States v. Hutchins, No. 10-5003/MC
Based upon the procedural error, the court determined that the
circumstances warranted a presumption of prejudice and treated
Appelleeās remaining assignments of error as moot. Id. at 631.
Based upon the presumption of prejudice, the court set aside the
findings and sentence, and authorized a rehearing. Id.
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 NAVY-
MARINE CORPS COURT INCORRECTLY FOUND NO
āGOOD CAUSEā ON THE RECORD FOR THE
REPLACEMENT OF APPELLANTāS 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]āS
STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE
SATISFIED THROUGH TRIAL?
I. OVERVIEW
A. COUNSEL RIGHTS UNDER THE UCMJ
The certified issues concern the right of an accused to be
represented by counsel under the UCMJ. In each general and
special court-martial, a statutorily qualified military defense
counsel, known as detailed military defense counsel, is assigned
3
United States v. Hutchins, No. 10-5003/MC
to represent the accused. Article 27(a)(1), UCMJ, 10 U.S.C. Ā§
827(a)(1)(2006). The detailing authority has discretion to
assign additional military defense counsel, designated as
assistant or associate detailed military defense counsel, to
represent the accused. Article 27(a)(1) UCMJ; Article
38(b)(6)(A), 10 U.S.C. Ā§ 838(b)(6)(A)(2006).
Article 27 requires the Secretaries of the military
departments to prescribe regulations governing the detail of
counsel to courts-martial, permitting the detail through judge
advocate rather than command channels. Under current
regulations, the defense counsel structure in the Marine Corps
exercises the responsibility for detailing defense counsel to
general and special courts-martial in that service. Depāt of
the Navy, Judge Advocate General Instr. 5800.7E, Manual of the
Judge Advocate General Ā§ 0130b(1) (June 20, 2007).
By statute, the accused may request representation by
individual military counsel of the accusedās own selection,
subject to the availability of such counsel under applicable
statutory and regulatory standards. Article 38(b)(3)(B), UCMJ.
In addition to military defense counsel furnished at government
expense, the accused may be represented by civilian counsel
provided by the accused. Article 38(b)(3)(B), UCMJ.
4
United States v. Hutchins, No. 10-5003/MC
B. REPRESENTATION OF APPELLEE AT HIS COURT-MARTIAL
In the present case, Appellee faced a variety of serious
charges related to the death of an Iraqi citizen in Hamdaniyah,
Iraq. Throughout the pretrial, trial, and post-trial
proceedings, Appellee received the assistance of multiple
counsel, including civilian defense counsel of his own
selection, detailed military defense counsel, and detailed
military assistant defense counsel. See Articles 27, 38, UCMJ.
The accused did not submit a request for representation by
individual military counsel, and that right is not at issue in
the appeal now before us.
Two of the attorneys who represented Appellee -- the
civilian defense counsel and the detailed military defense
counsel -- remained on the defense team throughout all
proceedings pertinent to the present appeal. One attorney --
the first detailed military assistant defense counsel --
terminated his representation of Appellee during the pretrial
proceedings, and a new assistant defense counsel later joined
the defense team for the remainder of the pretrial and trial
proceedings.
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
5
United States v. Hutchins, No. 10-5003/MC
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. Ā§ 866 (2006).
II. BACKGROUND
A. THE FORMATION AND TRANSFORMATION
OF THE DEFENSE TEAM
1. Overview of pretrial and trial proceedings
The Government preferred the initial charges against
Appellee on June 21, 2006. On August 18, 2006, the convening
authority referred a variety of charges for trial by general
court-martial. The military judge held the first pretrial
session of the court-martial on December 7, 2006. Subsequent
pretrial sessions took place on February 27 and 28, 2007, March
26, 2007, June 11, 12, and 13, 2007, and July 11 and 12, 2007.
The military judge initially scheduled trial on the merits to
begin on April 23, 2007. After granting several defense
requests for continuances, the military judge held the first
6
United States v. Hutchins, No. 10-5003/MC
trial proceeding on July 23, 2007. The trial concluded on
August 3, 2007.
2. The initial defense team
From July 2006 to May 2007, Appelleeās defense team
consisted of three attorneys: Mr. J. Richardson Brannon, a
civilian counsel retained by Appellee; Lieutenant Colonel Joseph
S. Smith, who served as the detailed defense counsel; and
Captain Alan Bass, who served as the detailed assistant defense
counsel. Mr. Brannon served as lead defense counsel. The
record reflects an appropriate inquiry by the military judge
into the validity of the detailing or selection of each of these
counsel and establishment of an attorney-client relationship
between each counsel and Appellee.
3. EAS -- The planned departure of Captain Bass from active
service
During the summer of 2006, Captain Bass, the detailed
assistant defense counsel, initiated an application through
personnel channels to end his active duty service (EAS) as a
Marine Corps officer. On August 31, 2006, Captain Bass
submitted a request to resign his commission, proposing an
effective date of July 1, 2007. According to his later
testimony, he did not focus in the summer of 2006 on the
relationship between his resignation request and the pending
trial. In his view, the timing of his departure ādidnāt appear
7
United States v. Hutchins, No. 10-5003/MC
to be an issueā because of the anticipated trial schedule which
provided for beginning trial on the merits on April 23, 2007,
more than two months before his proposed separation date.
In the November 2006 time frame, Lt. Col. Smith, the
detailed defense counsel, learned of the proposed departure of
Captain Bass from active duty. Mr. Brannon, the lead counsel,
learned of the proposed departure at some point during the
pretrial stage of the hearings, but he could not recall with any
greater precision when he first heard that Captain Bass would be
leaving active duty. The Marine Corps approved the resignation
request from Captain Bass in February 2007, with an effective
date of July 1, 2007.
During the period from August 2006 until May 2007, Captain
Bass participated in all of the pretrial sessions held by the
military judge. During that period, he did not inform either
the military judge or Appellee of his August 2006 request for
separation, nor did he advise the military judge or Appellee of
the February 2007 approval of the request by the Marine Corps.
4. The first defense motion for a continuance
On March 12, 2007, the defense submitted a motion proposing
to move the start of trial on the merits from April 23, 2007,
the originally scheduled date, to July 16, 2007. The motion,
signed by Lt. Col. Smith, the detailed defense counsel,
described developments that required further investigation and
8
United States v. Hutchins, No. 10-5003/MC
preparation by the defense. After noting Appelleeās pretrial
confinement status, the defense motion expressly stated that
ā[Appellee] is aware of the importance of obtaining the
additional time to properly prepare for trial and is
affirmatively requesting that the continuance be granted in
order to ensure that his right to a fair trial is honored.ā The
defense further contended that the circumstances requiring a
continuance until the proposed new trial date āconstitute an
assertion of Sergeant Hutchinās [sic] 6th Amendment right to the
effective assistance of counsel,ā adding that āfailure to grant
it [the continuance] will strip Sergeant Hutchins of his
fundamental 6th Amendment right to the effective assistance of
counsel.ā
The motion did not refer to the impending resignation of
Captain Bass, nor did the motion indicate directly or indirectly
that the defense based the continuation request on the impending
resignation. The text of the motion did not reflect the fact
that the proposed trial date -- July 16 -- would result in
commencement of trial on the merits subsequent to the July 1
termination of Captain Bassās active duty status.
The defense motion referred to negotiations with the trial
counsel regarding the proposed date and indicated that the
prosecution did not oppose the motion. The military judge
9
United States v. Hutchins, No. 10-5003/MC
subsequently granted the motion to postpone the start of the
trial date to July 16, 2007.
5. The second defense motion for a continuance
Through the middle of May 2007, Captain Bass continued to
participate actively as a member of the defense team. On May
18, 2007, he submitted to the military judge a defense motion
requesting relief with respect to the authorized sentence in the
case. On the same day -- May 18 -- the defense submitted a
second request for continuance of trial on the merits. Lt. Col.
Smith, the detailed defense counsel, signed the motion, and
Captain Bass signed the certificate of service.
In the motion for continuance, the defense contended that
counsel would need additional preparation time following
resolution of a pending discovery issue. Although the motion
did not assert that the discovery matter was under the
responsibility of any particular member of the defense team, the
motion took note of the impending departure of Captain Bass. In
that regard, the motion made three points. First, the motion
observed: āOne of the detailed defense counsel for the accused,
Captain A. G. Bass, is separating from active duty effective 1
July 2007.ā Second, the motion connected Captain Bassās change
in status to a change in the composition of the defense team:
āFor this reason, he is being released as detailed counsel and
Major B. Cosgrove, USMCR is being detailed as his replacement.ā
10
United States v. Hutchins, No. 10-5003/MC
Third, the motion directly connected the request for a
continuance to Appelleeās right to counsel: āGiven this change
in defense counsel, the defense requires additional time to
allow Major Cosgrove to adequately prepare to effectively
represent the accused in his case.ā
The motion expressly described Appelleeās personal
involvement in the request for a continuance, stating:
Although Sergeant Hutchins is confined at the
Base Brig and any continuance in the trial
necessarily impacts him, he is aware of the
importance of obtaining the additional time to
properly prepare for trial and is affirmatively
requesting that the continuance be granted in
order to ensure that his right to a fair trial is
honored.
In line with the prior motion for a continuance, the second
motion specifically tied the request to Appelleeās right to
counsel: āThe underlying bases for a continuance constitute an
assertion of Sergeant Hutchinās [sic] 6th Amendment right to the
effective assistance of counsel, . . . [and] failure to grant it
[the continuance] will strip Sergeant Hutchins of his
fundamental 6th Amendment right to the effective assistance of
counsel . . . .ā Consideration on the motion was deferred until
the June 11-13 hearing session.
11
United States v. Hutchins, No. 10-5003/MC
6. Captain Bass informs Appellee of his impending separation
from active duty
At some point in May, Captain Bass informed Appellee that
he was leaving active duty and that he would no longer represent
Appellee as his detailed defense counsel. He did not obtain a
written release from Appellee. The record indicates that this
discussion took place in early May, but the record does not
establish whether the conversation occurred before or after
Captain Bass participated in the May 18, 2007, defense request
for a continuance.
It does not appear from the record that Captain Bass
advised Appellee regarding the potential for a change in the
separation date, nor does it appear that Captain Bass informed
him of the possibilities for remaining on the case in military
status. Although Captain Bass mentioned that he might return
for the trial as a civilian in a pro bono capacity, he did not
follow up on that suggestion. Captain Bass had no further
contact with Appellee after the May meeting.
Shortly after the May meeting, Captain Bass began his
terminal leave. In that status, he remained a member of the
Marine Corps, but in a leave status without any assigned
military duties.
In the present case, Captain Bass did not request release
from his duties as defense counsel from the military judge,
12
United States v. Hutchins, No. 10-5003/MC
senior defense counsel, or any other authority. No member of
the defense team informed Appellee of potential options for
continued representation by Captain Bass, such as foregoing
terminal leave, postponing the date of separation, or serving as
defense counsel in a reserve status. See infra Section III.A.2.
The record reflects that the lead counsel, Mr. Brannon, and the
detailed defense counsel, Lt. Col. Smith, did not find it
necessary to explore the options for retaining Captain Bass on
the case or to provide specific advice to Appellee in that
regard. Instead, they treated the release of Captain Bass as a
fact of life, and made no effort to retain him as a member of
the defense team.
7. The status of the defense team at the June 11, 2007
pretrial hearing
On June 11, 2007, the military judge conducted a pretrial
hearing that included consideration of the defense request for a
continuance regarding the starting date for trial on the merits.
At the outset of the hearing, the military judge described
various changes in the composition of the defense team. He
began by stating that āin the prior session of the Court, the
accused was represented by Captain Bass, Lieutenant Colonel
Smith, and Mr. Brannon.ā The military judge then observed that
āCaptain Bass is currently not present.ā The military judge
stated that he had ābeen informed by counsel that he [Captain
13
United States v. Hutchins, No. 10-5003/MC
Bass] arrived at his Expiration of Active Service in the Marine
Corps, and has been discharged from the Marine Corps and has
been relieved as detailed defense counsel in this case; and has
been replaced by Lieutenant Colonel Cosgrove.ā
The military judge further observed that āLieutenant
Colonel Cosgrove currently is not present.ā At that point, he
asked defense counsel to āinform me on the status of both, just
to clarify on Captain Bass and Lieutenant Colonel Cosgrove, and
then also whatās happening with Lieutenant Colonel Cosgrove
today.ā
The detailed defense counsel, Lt. Col. Smith, responded
that āCaptain Bass reached the end of his obligated service. He
has been relieved of representation of Sergeant Hutchins.
Lieutenant Colonel Cosgrove has been detailed by Colonel Carol
Joyce, the Chief Defense Counsel of the Marine Corps to
serve -- .ā
At that point, the military judge interrupted counsel and
engaged counsel for both parties in a colloquy on the issue of
whether Colonel Joyce possessed the authority to detail defense
counsel in the present case. In response to questions from the
military judge, Lt. Col. Smith said that the approval of Lt.
Col. Cosgrove to serve as defense counsel occurred on May 19 or
20. He also noted his āunderstandingā that as of the June 11
14
United States v. Hutchins, No. 10-5003/MC
hearing, Cosgrove had not yet established an attorney-client
relationship with Appellee.
Following the inconclusive discussion as to the source of
authority for detailing Lt. Col. Cosgrove, the military judge
returned to Captain Bassās departure, asking when he left active
duty. Lt. Col. Smith, the detailed defense counsel, provided
the following ambiguous answer:
Iām not sure of the exact date, Your Honor. I
know that he was -- executed orders to -- on
terminal leave some time around the -- before
Memorial Day holiday. I know that, sir. Some
time probably around the 25th of May; that could
be off a few days one way or another.
The military judge did not attempt to clarify whether Captain
Bass, at the time of the June 11 hearing, remained on active
duty in a terminal leave status or whether he had been separated
from the Marine Corps. The record of trial does not indicate
why Captain Bass, his co-counsel, or his superiors apparently
treated the discretionary status of terminal leave as having a
greater priority than his obligation to represent his client.
Similarly, the record of trial does not contain information
regarding the formalities of any termination of the attorney-
client relationship.
The military judge then turned to the subject of Appelleeās
right to select individual military counsel, and the impact of
any such request on his representation by Lt. Col. Smith. In
15
United States v. Hutchins, No. 10-5003/MC
that context, the military judge provided the following advice
to Appellee regarding Captain Bass: āNow you have the right to
all your detailed defense counsel including Captain Bass;
however, once Captain Bass leaves active duty, thereās no way
that the Marine Corps can keep him on as your detailed defense
counsel.ā When he inquired as to whether Appellee understood
that point, Appellee responded in the affirmative.
The military judge misinformed Appellee when he asserted
that there was āno wayā for the Marine Corps to provide for
Captain Bass to continue in military status as detailed defense
counsel. See infra Section III.A.2. Moreover by neglecting to
clarify the status of Captain Bass at the time of the June 11
hearing, the military judge failed to inform Appellee of his
right to representation by Captain Bass at the June 11 hearing.
In response to questions from the military judge, Appellee
stated that he had discussed the issue of Captain Bass in detail
with Mr. Brannon and Lt. Col. Smith, and stated that he had no
questions regarding his right to counsel. In the context of
this exchange, and the problems noted above, it is not apparent
whether Appellee received accurate advice from civilian counsel
and detailed counsel, or whether they labored under the same
misapprehensions as the military judge.
The military judge concluded the discussion by confirming
that Appellee had not yet entered into an attorney-client
16
United States v. Hutchins, No. 10-5003/MC
relationship with Lt. Col. Cosgrove, that he had not made any
request for assignment of a specific individual military
counsel, and that he wanted to be represented by Mr. Brannon,
Lt. Col. Smith, and Lt. Col. Cosgrove. The military judge
commented that he remained concerned about the question of
whether Lt. Col. Cosgrove had been properly detailed to the
case, and he advised the parties that he would explore that
matter, as well as Appelleeās right to request individual
military counsel, in a subsequent session.
8. Representation at trial
Eventually, the military judge determined that an
appropriate authority detailed Lt. Col. Cosgrove to serve as
defense counsel and that Appellee agreed to proceed with the
defense team of Mr. Brannon, Lt. Col. Smith, and Lt. Col.
Cosgrove. The record of the trial proceedings contains no
further discussion regarding representation by Captain Bass.
Mr. Brannon, Lt. Col. Smith, and Lt. Col. Cosgrove represented
Appellee during the ensuing pretrial and trial proceedings.
B. CONSIDERATION OF THE RIGHT TO COUNSEL
BY THE COURT OF CRIMINAL APPEALS
The Navy-Marine Corps Court of Criminal Appeals found that
all the participants at Appelleeās court-martial were āmutually
confused regarding Capt Bassā[s] active duty status,ā and the
other issues of severance. Hutchins, 68 M.J. at 627. In that
17
United States v. Hutchins, No. 10-5003/MC
context, the court concluded that āthe military judge
effectively severed the attorney-client relationshipā and did so
without good cause. Id. The court determined that Captain Bass
failed to properly advise Appellee on his options and walked
away from the case without a proper handoff. Id. at 630. The
court further determined that the military judge compounded
matters by treating the situation as a fait accompli and by
approving counselās departure without fully explaining the
situation to Appellee. Id. at 629-30. Noting that the errors
in the case came from both within and outside of the defense
team, the Court of Criminal Appeals declined to conduct a
prejudice analysis. Id. at 631. The court presumed prejudice
and set aside the findings and sentence. Id.
III. DISCUSSION
On appeal, the Government contends that the Court of
Criminal Appeals erred both in its assessment of error and by
applying a presumption of prejudice. The Government takes the
position that the expiration of a defense counselās active
service obligation established good cause to sever the attorney-
client relationship. The Government further contends that even
if error occurred with respect to the procedural details of
severing the relationship, the severance did not prejudice
18
United States v. Hutchins, No. 10-5003/MC
Appellee in this case under Article 59(a), UCMJ, 10 U.S.C. Ā§ 859
(a)(2006).
The defense contends that the Court of Criminal Appeals
correctly decided that the record did not establish good cause
for severance of the attorney-client relationship and that the
presumption of prejudice was appropriate under applicable case
law. The defense further contends that even if an assessment of
prejudice is required, the record establishes that the severance
resulted in prejudice to Appellee.
The issues raised by the parties focus on the procedural
rules for withdrawal or change of defense counsel, including the
standards for evaluating prejudice from noncompliance with those
rules. In its present posture, the case before us is limited to
those issues, and does not involve an allegation that the
defense team provided ineffective assistance of counsel under
applicable Sixth Amendment standards, that the Government
intentionally interfered with the attorney-client relationship,
or that the Government denied a request by the defense to
continue the services of the assistant detailed defense counsel.
A. PROCEDURAL REQUIREMENTS
FOR WITHDRAWAL OR CHANGE OF COUNSEL
Under the Rules for Courts-Martial (R.C.M.), an established
attorney-client relationship between an accused and defense
counsel may be severed only under a limited set of
19
United States v. Hutchins, No. 10-5003/MC
circumstances. See, e.g., United States v. Wiechmann, 67 M.J.
456, 458 (C.A.A.F. 2009). R.C.M. 505(d)(2)(B) and 506(c), which
provide the primary authority for severance of an attorney-
client relationship, authorize four options, which are discussed
below.
The military judge has a critical role in this process.
R.C.M. 813 expressly requires the military judge to note which
counsel are present or absent at each session of the court-
martial. Moreover, under R.C.M. 813(c), ā[w]henever there is a
replacement of . . . counsel, either through the appearance of
new personnel or personnel previously absent or through the
absence of personnel previously present, the military judge
shall ensure the record reflects the change and the reason for
it.ā See generally United States v. Acton, 38 M.J. 330, 335-37
(C.M.A. 1993) (noting that even when good cause or express
consent exist, it is necessary to place that information on the
record).
1. Excusal by the detailing authority for good cause shown on
the record
The detailing authority may excuse detailed defense counsel
ā[f]or other good cause shown on the record.ā R.C.M.
505(d)(2)(B)(iii). Under the Rule, āāgood causeā includes
physical disability, military exigency, and other extraordinary
circumstances which render the member, counsel, or military
20
United States v. Hutchins, No. 10-5003/MC
judge unable to proceed with the court-martial within a
reasonable time.ā R.C.M. 505(f). The Rule further states that
good cause ādoes not include temporary inconveniences which are
incident to normal conditions of military life.ā Id.; see infra
Section III.B. (addressing the application of R.C.M.
505(d)(2)(B)(iii) to the circumstances of the present case).
2. Excusal of defense counsel with the express consent of the
accused
Defense counsel also may be excused āwith the express
consent of the accused.ā R.C.M. 506(c). The military judge,
after hearing from counsel, variously stated that Captain Bass
either had left or was leaving active duty, and that there was
āno wayā that Captain Bass could continue to represent Appellee.
The military judge, apparently assuming that Captain Bass
already had been relieved, presented the termination of the
attorney-client relationship as an established fact without
ascertaining whether any consideration had been given to other
available options, such as postponing terminal leave, requesting
a delay in Captain Bassās date of separation, or requesting
representation by Captain Bass in his post-separation status as
a military reservist. See, e.g., 10 U.S.C. Ā§Ā§ 12301, 12303
(allowing for voluntary and involuntary activation of reserve
members under specified conditions); see also, Depāt of the
Navy, Marine Corps Order P1900.16F, Marine Corps Separation and
21
United States v. Hutchins, No. 10-5003/MC
Retirement Manual para. 1010 (June 6, 2007) [hereinafter MCO
P1900.16F]. Under these circumstances, the record of trial does
not establish the required consent to the severance of the
relationship on the part of Appellee under R.C.M. 506(c).
3. Application for withdrawal by the defense counsel for good
cause
Under the third option, also part of R.C.M. 506(c), defense
counsel may be excused āby the military judge upon application
for withdrawal by the defense counsel for good cause shown.ā
The record of trial does not contain an application for
withdrawal from the assistant defense counsel, and the military
judge who conducted the post-trial factfinding proceeding
concluded that no such application had been submitted. See
supra Section II.A.6. Accordingly, the record of trial does not
provide a basis for concluding that counsel withdrew upon
request under R.C.M. 506(c).
4. Excusal upon appointment of individual military counsel
The fourth option permits the detailing authority to excuse
detailed defense counsel upon appointment of individual military
defense counsel requested by the accused under Article
38(a)(3)(B). See R.C.M. 505(d)(2)(B)(i); R.C.M. 506(b)(3);
R.C.M. 506(c). As the accused did not request appointment of
individual military counsel, that option is not at issue in the
present case.
22
United States v. Hutchins, No. 10-5003/MC
B. CONSIDERATION OF SEVERANCE DURING APPELLEEāS TRIAL
Captain Bass informed Appellee in May 2007 that he would no
longer serve as his counsel in view of his impending separation
from active duty. The next session of the court-martial took
place on June 11, 2007. Captain Bass, although still on active
duty, did not attend the hearing. At that hearing, the military
judge did not establish, on the record, the specific reason for
the absence of Captain Bass; nor did the military judge
establish on the record the basis under R.C.M. 505 or 506 for
Captain Bassās withdrawal from representation of Appellee.
The record of the June 11 proceeding contains a variety of
statements from counsel regarding the status of Captain Bass.
See supra Section II(A)(7). The Government contends that these
statements reflect an understanding that the detailing authority
had excused Captain Bass from further representation of Appellee
based upon Captain Bassās impending departure from active duty.
None of those remarks, however, contain a statement by or on
behalf of the detailing authority excusing Captain Bass from
representing Appellee at either the June 11 proceeding or any
further proceedings in the case.
The Government contends that separation from active duty,
by itself, establishes good cause for severance of an attorney-
client relationship, and that nothing more than an impending
separation need be shown on the record. The defense contends
23
United States v. Hutchins, No. 10-5003/MC
that the Government should be required to establish good cause
for any severance, and has suggested that separation from active
duty be tested under a range of criteria that take into account
both the Governmentās interests and the interests of the
accused.
Our case law does not establish separation from active duty
as necessarily establishing good cause in every case, nor does
our case law establish a specific methodology for considering
the relative interests of the government, counsel, and the
client. Compare, e.g., United States v. Spriggs, 52 M.J. 235,
246 (C.A.A.F. 2000) (stating that ā[a]bsent government
misconduct, the routine separation of a judge advocate from
active duty normally terminates any attorney-client relationship
. . . .ā), with United States v. Eason, 21 C.M.A. 335, 45 C.M.R.
109, 111 (1972) (observing that an attorney-client relationship
āmay not be severed or materially altered for administrative
convenienceā). Use of the word ānormallyā in Spriggs reflects
articulation of general guidance, not a restrictive rule.
Although separation from active duty normally terminates
representation, highly contextual circumstances may warrant an
exception from this general guidance in a particular case. In
any given case, separation from active duty may amount to a
routine personnel action or may implicate significant government
interests. Likewise, cancellation or postponement of a
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United States v. Hutchins, No. 10-5003/MC
separation date, or recall to service in a reserve status, may
involve routine action or significant interests. See, e.g., MCO
P1900.16F para. 5002; 10 U.S.C. Ā§Ā§ 12301, 12302. Similarly,
considerations pertinent to the role of a particular member of
the defense team in a specific case may range from routine
matters to complex considerations.
Absent a record developed at trial on these matters, the
present case does not provide an appropriate occasion for us to
set forth in detail the manner in which these various
considerations should be weighed at trial and on appeal. The
present case, however, does underscore the importance of the
military judge establishing on the record the reasons for the
absence of counsel. At trial, if the parties indicate that a
member of the defense team has been excused under R.C.M.
505(d)(2)(B)(iii), the military judge must ensure under R.C.M.
813(c) that: (1) the record demonstrates that a competent
detailing authority has determined that good cause exists for
excusing counsel; and (2) that the record sets forth the basis
for the good cause determination.
As noted by the court below, the defense team did not
fulfill its responsibilities to Appellee with respect to full
discussion of the options regarding severance of the
relationship between Appellee and Captain Bass. See Hutchins,
68 M.J. at 629-30. The responsibility, however, for ensuring
25
United States v. Hutchins, No. 10-5003/MC
that the record contained an accounting of Captain Bassās
absence and departure that was accurate as a matter of law and
fact rested with the military judge under R.C.M. 813(c). Under
the circumstances of this case, the vague and uncertain answers
provided by defense counsel on matters of law and fact should
have alerted the military judge as to the importance of
establishing a clear record in this case. The military judge
erred in failing to ensure that the record accurately reflected
the reasons for the absence of counsel.
C. ASSESSING PREJUDICE
The court below noted that our Court has taken a variety of
approaches to the question of prejudice flowing from errors in
severance of the attorney-client relationship. See Hutchins, 68
M.J. at 630 (citing United States v. Iverson, 5 M.J. 440 (C.M.A
1978) (prejudice presumed), United States v. Baca, 27 M.J. 110
(C.M.A. 1988) (same), United States v. Acton, 38 M.J. 330
(C.M.A. 1993) (prejudice evaluated in light of facts and
circumstances); United States v. Kelly, 16 M.J. 244 (C.M.A.
1983) (same)). Focusing on the important value of counsel
continuity, the lower court determined that a presumption of
prejudice should apply to the circumstances of the current
appeal, and set aside the findings and sentence. Hutchins, 68
M.J. at 631.
26
United States v. Hutchins, No. 10-5003/MC
For purposes of considering our approach to the question of
prejudice, we consider the context of the error in the present
case. In that regard, we have before us both the record of
trial and the record of the post-trial factfinding hearing.
We note that Appellee had the assistance of multiple
counsel throughout the pertinent proceedings. After the
assistant detailed defense counsel left the defense team, he had
the assistance of a replacement assistant defense counsel
detailed prior to trial. We further note that the military
judge, at the request of the defense, granted a continuance to
facilitate preparation by the new member of the defense team.
The defense did not thereafter request additional time or
resources to permit the reconstituted defense team to prepare
for or conduct proceedings at trial. Similarly, we note that
the personnel action leading to the severance in the present
case resulted from a request initiated by the assistant defense
counsel, not by the prosecution or the command. In that
context, the case before us does not involve a violation of
Appelleeās Sixth Amendment right to counsel. See Morris v.
Slappy, 461 U.S. 1, 14 n.6 (1983). This case does not involve
structural error. See United States v. Davis, 64 M.J. 445, 449
(C.A.A.F. 2007) (noting that ā[a]n error is treated as
inherently prejudicial, without the need for a further showing
of prejudice, only if it amounts to a structural defect[] in the
27
United States v. Hutchins, No. 10-5003/MC
constitution of the trialā) (citation and quotation omitted)
(alteration in original); see also United States v. Brooks, 66
M.J. 221, 224 (C.A.A.F. 2008) (noting that structural error
involves āerrors in the trial mechanism so serious that āa
criminal trial cannot reliably serve its function as a vehicle
for determination of guilt or innocenceāā (quoting Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991))).
The errors in this case involve oversights and omissions in
addressing the issue of severance on the part of defense
counsel, senior officials in the defense counsel structure, and
the military judge. The case does not involve any decision by
the military judge to deny pertinent relief requested by the
defense, such as a request for additional time or resources for
trial preparation, nor does the case involve a decision by the
military judge to overrule a related defense objection. Cf.
United States v. Gnibus, 21 M.J. 1, 8-9 (C.M.A. 1985).
Likewise, the case involves a personnel action initiated by a
member of the defense team, and does not involve governmental
action undertaken for the purpose of altering the composition of
the defense team. Cf. Eason, 21 C.M.A. at 338-39, 45 C.M.R. at
112-13 (describing circumstances in which action by the
government could be viewed as interference with the attorney-
client relationship).
28
United States v. Hutchins, No. 10-5003/MC
In that context, the case before us presents trial errors
that can be evaluated under the standard formula for assessing
prejudice against the defense, in which the defense must
establish that the error produced material prejudice to the
substantial rights of the accused. See Article 59(a), UCMJ;
Acton, 38 M.J. at 336-37. Such an approach reflects our recent
decisions involving errors that produced an interference with
the attorney-client relationship. See United States v.
Wiechmann, 67 M.J. 456 (C.A.A.F. 2009); United States v.
Rodriguez, 60 M.J. 239 (C.A.A.F. 2004).
Article 59(a), UCMJ, requires that a case not be reversed
for error unless āthe error materially prejudices the
substantial rights of the accused.ā In the present appeal, the
defense does not assert that Appellee failed to receive the
effective assistance of trial required by the Sixth Amendment.
Instead, the defense identifies negative aspects of the defense
teamās performance at trial in areas that had been under the
responsibility of Captain Bass, asserting that Captain Bass
would have outperformed the defense team in each of those areas
in a positive manner, thereby producing a different result as to
the findings or sentence or both.
The areas of interest identified by the defense on appeal
involve Captain Bassās positive relationships with the military
judge, lead defense counsel, and Appellee; his expertise in
29
United States v. Hutchins, No. 10-5003/MC
mental health issues; and his preparation for sentencing.
After reviewing the defense trial teamās performance in
hindsight, the defense on appeal identifies weaknesses and
asserts that Captain Bass would have performed in a superior
manner.
Appellee was represented by two attorneys throughout the
process: (1) Mr. Brannon, the civilian counsel selected by
Appellee, who had nearly thirty years of experience, including
dozens of jury trials and a number of capital cases; and (2) Lt.
Col. Smith, his lead detailed defense counsel, whose experience
included four years of active duty, service as Reserve Regional
Defense Counsel, and service as an assistant U.S. attorney in
his civilian capacity. After the departure of his third
counsel, Captain Bass, Appellee was provided with substitute
counsel, Lt. Col. Cosgrove, who had six years of active military
justice experience, as well as contemporary civilian experience
as a public defender, where he served as the senior trial
attorney for felony cases. None of the issues under the initial
responsibility of Captain Bass involved matters of fact or law
in which he had unique knowledge or expertise beyond that which
could be gained through routine preparation by the attorneys who
remained on the defense team. The military judge granted the
defense team each pertinent request for a continuance identified
by the defense as necessary to prepare for trial. Appellee has
30
United States v. Hutchins, No. 10-5003/MC
not contended that his remaining counsel were constitutionally
ineffective in their trial preparation. Under these
circumstances, we decline the defense invitation to measure the
potential performance of Captain Bass against the actual
performance, in the crucible of a contested trial, by those
experienced counsel who remained on the case. In view of these
considerations, we conclude that Appellee has not demonstrated
that errors by the military judge and counsel with respect to
the severance of Captain Bass materially prejudiced the
substantial rights of Appellee.
IV. CONCLUSION
We answer the first and second certified issues by holding
that the record of trial does not establish a valid basis for
termination of the attorney-client relationship between Appellee
and Captain Bass under the circumstances of this case. We
answer the third certified issue by holding that the errors in
this case may be tested for prejudice, and that the errors did
not materially prejudice the substantial rights of Appellee.
We note that the Court of Criminal Appeals, having set
aside the findings and sentence based upon a presumption of
prejudice, has not reviewed the balance of the case, including
other issues raised by Appellee with respect to the validity of
31
United States v. Hutchins, No. 10-5003/MC
the findings and sentence. Accordingly, a new review must be
conducted under Article 66(c).
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
the Court of Criminal Appeals for review under Article 66(c),
UCMJ, 10 U.S.C. Ā§ 866(c) (2006).
32