U.S. v. Hutchins, 69 M.J. 282

First Principles: Constitutional Matters: Right to Counsel

1. any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to the accused under applicable constitutional and statutory standards of law; the accused had the assistance of multiple counsel throughout the pertinent proceedings; after the assistant detailed defense counsel left the defense team, the accused had the assistance of a replacement assistant defense counsel detailed prior to trial; also, 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, 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 did not involve a violation of the accused’s Sixth Amendment right to counsel; also, the case did not involve structural error; the errors in this case involved 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 did 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; 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

Military Justice Personnel: Defense Function: Generally

1. under the Rules for Courts-Martial, an established attorney-client relationship between an accused and defense counsel may be severed only under a limited set of circumstances; RCM 505(d)(2)(B) and 506(c), which provide the primary authority for severance of an attorney-client relationship, authorize four options; first, the detailing authority may excuse detailed defense counsel for good cause shown on the record; good cause includes physical disability, military exigency, and other extraordinary circumstances which render counsel unable to proceed with the court-martial within a reasonable time; good cause does not include temporary inconveniences which are incident to normal conditions of military life; second, defense counsel may be excused with the express consent of the accused; under the third option, defense counsel may be excused by the military judge upon application for withdrawal by the defense counsel for good cause shown; 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), UCMJ
2. the first detailed military assistant defense counsel did not follow the appropriate procedures with respect to the termination of his participation in the court-martial prior to his separation from active duty; although counsel informed the accused that he would no longer serve as his counsel in view of his impending separation from active duty, he did not attend the next hearing of the court-martial despite still being on active duty; at that hearing, the military judge did not establish, on the record, the specific reason for the counsel’s absence, nor did the military judge establish on the record the basis under RCM 505 or 506 for counsel’s withdrawal from representation of the accused; in addition, none of the remarks made at that hearing contained a statement by or on behalf of the detailing authority excusing counsel from representing the accused; under the circumstances of this case, the record of trial did not establish a valid basis for the termination of counsel’s participation
3. the first detailed military assistant defense counsel’s impending separation from active duty did not, by itself, establish good cause for severance of his attorney-client relationship with the accused; 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 separation date, or recall to service in a reserve status, may involve routine action or significant interests; 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 to set forth in detail the manner in which these various considerations should be weighed at trial and on appeal
4. any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to the accused under applicable constitutional and statutory standards of law; the accused had the assistance of multiple counsel throughout the pertinent proceedings; after the assistant detailed defense counsel left the defense team, the accused had the assistance of a replacement assistant defense counsel detailed prior to trial; also, 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, 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 did not involve a violation of the accused’s Sixth Amendment right to counsel; also, the case did not involve structural error; the errors in this case involved 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 did 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; 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

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. in each general and special court-martial, a statutorily qualified military defense counsel, known as detailed military defense counsel, is assigned to represent the accused; the detailing authority has discretion to assign additional military defense counsel, designated as assistant or associate detailed military defense counsel, to represent the accused
2. 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
3. the first detailed military assistant defense counsel did not follow the appropriate procedures with respect to the termination of his participation in the court-martial prior to his separation from active duty; although counsel informed the accused that he would no longer serve as his counsel in view of his impending separation from active duty, he did not attend the next hearing of the court-martial despite still being on active duty; at that hearing, the military judge did not establish, on the record, the specific reason for the counsel’s absence, nor did the military judge establish on the record the basis under RCM 505 or 506 for counsel’s withdrawal from representation of the accused; in addition, none of the remarks made at that hearing contained a statement by or on behalf of the detailing authority excusing counsel from representing the accused; under the circumstances of this case, the record of trial did not establish a valid basis for the termination of counsel’s participation
4. the first detailed military assistant defense counsel’s impending separation from active duty did not, by itself, establish good cause for severance of his attorney-client relationship with the accused; 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 separation date, or recall to service in a reserve status, may involve routine action or significant interests; 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 to set forth in detail the manner in which these various considerations should be weighed at trial and on appeal
5. any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to the accused under applicable constitutional and statutory standards of law; the accused had the assistance of multiple counsel throughout the pertinent proceedings; after the assistant detailed defense counsel left the defense team, the accused had the assistance of a replacement assistant defense counsel detailed prior to trial; also, 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, 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 did not involve a violation of the accused’s Sixth Amendment right to counsel; also, the case did not involve structural error; the errors in this case involved 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 did 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; 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

Military Justice Personnel: Defense Function: Individual Military Counsel

1. by statute, the accused may request representation by individual military counsel of the accused’s own selection, subject to the availability of such counsel under applicable statutory and regulatory standards

Military Justice Personnel: Defense Function: Civilian Counsel

1. in addition to military defense counsel furnished at government expense, the accused may be represented by civilian counsel provided by the accused

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge has a critical role in the severance of defense counsel; RCM 813 expressly requires the military judge to note which counsel are present or absent at each session of the court-martial; moreover, under RCM 813(c), whenever 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
2. this case underscores 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 by the detailing authority for good cause under RCM 505(d)(2)(B)(iii), the military judge must ensure under RCM 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the accused was not materially prejudiced by the first detailed military assistance defense counsel’s failure to follow the appropriate procedures before terminating his participation in the accused’s case on the basis of his impending separation from active duty, where (1) the accused was represented by two attorneys throughout the process, and after the departure of his third counsel, the accused was provided with substitute counsel, (2) none of the issues under the initial responsibility of the departed counsel 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, and (3) the military judge granted the defense team each pertinent request for a continuance identified by the defense as necessary to prepare for trial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in this case, the procedural deficiencies concerning the termination and replacement of the first detailed military assistant defense counsel present 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; Article 59(a), UCMJ, requires that a case not be reversed for error unless the error materially prejudices the substantial rights of the accused