IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES. In Re ) ) Lawrence G. Hutchins III ) PETITION FOR EXTRAORDINARY

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES In Re ) ) Lawrence G. Hutchins III ) PETITION FOR EXTRAORDINARY Sergeant (E-5), ) RELIEF IN THE NATURE OF United States Marine Corps, ) WRIT OF MANDAMUS AND ) PROHIBITION Petitioner, ) v. ) USCA Misc. Dkt. No. ) Michael B. Richardson, ) Colonel, ) United States Marine Corps, ) In his official capacity as ) Military Judge, and ) ) United States, ) ) Respondents. ) TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: S. BABU KAZA DAVID C. DZIENGOWSKI Major, U.S. Marine Corps Reserve Lieutenant, JAGC, U.S. Navy Appellate Defense Counsel Appellate Defense Counsel 1254 Charles Morris Street SE 1254 Charles Morris Street SE BLDG 58, Suite 100 BLDG 58, Suite 100 Washington Navy Yard, DC Washington Navy Yard, DC (202) (202) babu_kaza@hotmail.com david.dziengowski@navy.mil Bar No Bar no JASON R. WAREHAM Captain, U.S. Marine Corps Appellate Defense Counsel 1254 Charles Morris Street SE BLDG 58, Suite 100 Washington Navy Yard, DC (202) jason.wareharm@navy.mil Bar No

2 Table of Contents Table of Contents... i Table of Authorities... ii Preamble... 1 History of the Case... 2 Reasons Relief Not Sought Below... 6 Relief Sought... 7 Jurisdictional Basis for Relief Sought... 8 Issues Presented Statement of Facts Reasons Why this Writ Should Be Granted Respondents Addresses, Telephone and Facsimile Numbers Certificate of Filing and Service Certificate of Compliance i

3 Table of Cases, Statutes, and Other Authorities SUPREME COURT OF THE UNITED STATES Cheney v. United States Dist. Court, 542 U.S. 367 (2004)...9 Clinton v. Goldsmith, 526 U.S. 529 (1999)...8 Crane v. Kentucky, 476 U.S. 683 (1986)...50 Crawford v. Washington, 541 U.S. 36 (2004)...39 Edwards v. Arizona, 451 U.S. 477 (1981)...4, 39 FTC v. Dean Foods Co., 384 U.S. 597 (1966)...8 Hamilton v. Alabama, 368 U.S. 52 (1961)...16, 30 Massiah v. United States, 377 U.S. 201 (1964)...30 Missouri v. Frye, 132 S. Ct (2013)...16, 30 United States v. Grinnell Corp., 384 U.S. 563 (1966)...55 Weiss v. United States, 510 U.S. 163 (1994)...20, 34 Wood v. Georgia, 450 U.S. 261 (1981)...30 U.S. COURT OF APPEALS FOR THE ARMED FORCES Ctr. for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013)...8 Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012)...62 Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006)...53 LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013)...8 United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999)...50 United States v. Gerlich, 45 M.J. 309 (C.A.A.F. 1996)...58 United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004)...38 United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013)...4, United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2011)...3 United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004)...60 United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008)...30, 31 United States v. McIlwain, 66 M.J. 312 (C.A.A.F. 2008)...54, 57 United States v. Nguyen, 56 M.J. 252 (C.A.A.F 2001)...53 United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001)...55 United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998)...33, 35 United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010)...41, 42 United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013)...46 United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004)...53 United States v. Shadwell, 58 M.J. 142 (C.A.A.F. 2003)...53 United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2004)...46 United States v. Wilson, 54 M.J. 450 (C.A.A.F. 2001)...53 United States v. Wright, 52 M.J. 136 (C.A.A.F. 1999)...55 Walker v. United States, 60 M.J. 354 (C.A.A.F. 2004)...42 Wuterich v. Jones, 70 M.J. 83 (C.A.A.F. 2011)...53 U.S. COURT OF MILITARY APPEALS United States v. Dubay, 37 C.M.R. 411 (C.M.A. 1967)...3 United States v. Labella, 15 M.J. 228 (C.M.A. 1983)...9 United States v. Thomas, 22 M.J. 388 (C.M.A. 1986)..7, 33, 35, 50 ii

4 U.S. CIRCUIT COURTS OF APPEALS In re Nettles, 394 F.3d 1001 (7th Cir. 2005)...56 In re Tennant, 359 F.3d 523 (D.C. Cir. 2004)...8 Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995) United States v. Cooley, 1 F.3d 985 (10th Cir. 1993)...56 United States v. Jordan, 49 F.3d 152 (5th Cir.1995)...55, 57 U.S. SERVICE COURTS OF CRIMINAL APPEALS/MILITARY REVIEW United States v. Allen, 3 M.J. 572 (N-M.C.M.R. 1990)...35 United States v. Hutchins, No , 2012 CCA LEXIS 93 (N-M. Cr. Crim. App. Mar. 20, 2012)...passim United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010)...passim United States v. Kratzenberg, 20 M.J. 670 (A.F.C.M.R. 1985)...55 U.S. CONSTITUTION Fifth Amendment...54 Sixth Amendment...26, U.S. STATUTES All Writs Act, 28 U.S.C , 8 28 U.S.C Article 26, UCMJ, 10 U.S.C Article 27, UCMJ, 10 U.S.C Article 39, UCMJ, 10 U.S.C passim Article 66, UCMJ, 10 U.S.C passim Article 67, UCMJ, 10 U.S.C , 39, 53 Article 81, UCMJ, 10 U.S.C Article 107, UCMJ, 10 U.S.C Article 118, UCMJ, 10 U.S.C Article 121, UCMJ, 10 U.S.C Article 128, UCMJ, 10 U.S.C Article 130, UCMJ, 10 U.S.C Article 134, UCMJ, 10 U.S.C RULES C.A.A.F. R C.A.A.F. R C.A.A.F. R C.A.A.F. R , 65 C.A.A.F. R , 65 R.C.M iii

5 SECONDARY SOURCES: The King James Bible, Book of Matthew...1 J. Shaman et al., Judicial Conduct and Ethics (2d ed. 1995) JAGINST D (May 1, 2012)...passim Gretel C. Kovach, Marine arraigned in Iraq Murder, San Diego Union-Tribune, Feb 13, 2014, available at (last visited Apr 23, 2014) Marine Corps Defense Services Organization Homepage, (last visited Apr. 18, 2014)...29 iv

6 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES In Re ) ) Lawrence G. Hutchins III ) PETITION FOR EXTRAORDINARY Sergeant (E-5), ) RELIEF IN THE NATURE OF United States Marine Corps, ) WRIT OF MANDAMUS AND ) PROHIBITION Petitioner, ) v. ) USCA Misc. Dkt. No. ) Michael B. Richardson, ) Colonel, ) United States Marine Corps, ) In his official capacity as ) Military Judge, and ) ) United States, ) ) Respondents. ) TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: Preamble No one can serve two masters. He will either hate one and love the other, or be devoted to one and despise the other. --Matthew 6:24 Petitioner Sergeant Lawrence G. Hutchins, III, U.S. Marine Corps, hereby prays for a writ of mandamus and prohibition under Rules 4(b)(1), 19(d), and 27 of this Court s Rules of Practice and Procedure. Specifically, Petitioner requests this Court grant extraordinary relief by issuing a writ of mandamus: (1) ordering Respondent Judge Richardson to abate general court-martial proceedings against Petitioner until Respondent

7 United States has provided Petitioner conflict-free detailed defense counsel, (2) ordering Respondent United States to provide Petitioner conflict-free detailed defense counsel, and (3) ordering Respondent Judge Richardson to recuse himself from this case. Petitioner further requests this Court issue a writ of prohibition barring Respondent United States from detailing to Petitioner s court-martial any judge from the Navy-Marine Corps Judiciary. I. History of the Case A general court-martial, composed of members with enlisted representation, tried Sergeant (Sgt) Lawrence G. Hutchins III, U.S. Marine Corps, from July 23 to August 3, Contrary to his pleas, the members found Sgt Hutchins guilty of violating Article 81, UCMJ (conspiracy - through exceptions and substitutions); Article 107, UCMJ (false statement); Article 118, UCMJ (unpremeditated murder); and Article 121, UCMJ (larceny). See 10 U.S.C. 881, 907, 918, 921 (2000). The members acquitted Sgt Hutchins of premeditated murder, assault, housebreaking, kidnapping, obstruction of justice, and one specification of false statement. See 10 U.S.C. 907, 918, 928, 930, 934 (2000). They then sentenced Sgt Hutchins to 2

8 confinement for fifteen years, reduction in rank to paygrade E- 1, a reprimand, and a dishonorable discharge. On May 2, 2008, the convening authority approved the findings and sentence, save the reprimand and confinement in excess of eleven years. With the exception of the dishonorable discharge, he ordered the approved sentence executed. On May 20, 2009, the U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA) remanded the case for a Dubay hearing on a specified issue -erroneous severance of counsel. See 37 C.M.R. 411 (C.M.A. 1967). That hearing was conducted at Camp Pendleton, California, on August 18, 19, and 28, On March 15, 2010, the NMCCA, sitting en banc, heard oral argument. It issued its opinion on April 22, 2010, setting aside the findings and sentence. See generally United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010) (Hutchins I). 1 On June 7, 2010, the Judge Advocate General of the Navy ( the JAG ) certified the case to this Court, which held oral argument on October 13, On January 11, 2011, this Court issued its opinion, affirming in part and reversing in part, and remanding the case back to the NMCCA for consideration of the remaining issues. See generally United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2011) (Hutchins II). 1 For the sake of convenience, each citation to the four opinions in this case--beginning in the statement of facts--are to the appendix only. 3

9 The case was re-docketed at the NMCCA on February 18, On March 20, 2012, the lower court issued an unpublished opinion, affirming the findings and sentence. See generally United States v. Hutchins, No , 2012 CCA LEXIS 93 (N- M. Ct. Crim. App. March 20, 2012) (Hutchins III). Sgt Hutchins thereafter petitioned this Court--successfully--for grant of review of two issues: (1) whether the Secretary of the Navy committed unlawful command influence (UCI) and (2) whether NCIS committed an Edwards v. Arizona violation in obtaining a statement against him. See 451 U.S. 477 (1981). This Court heard oral argument on November 13, It issued its opinion on June 26, 2013, finding prejudicial error under the Edwards issue. Notably, this Court did not address the UCI issue. See generally United States v. Hutchins, 72 M.J. 294, n.3 (C.A.A.F. 2013) (Hutchins IV). Consequently, this Court reversed the lower court, set aside the findings and sentence, and returned the case to the JAG. Hutchins IV, 72 M.J. at 296. The JAG sent the case up. The Solicitor General of the United States (SG) requested two extensions of time to consider whether to file a petition for writ of certiorari. He withdrew his second request on November 6, Thirteen days later, the JAG sent the case down, returning it to Commanding General, Marine Forces Central Command, with authorization to conduct a rehearing. (App. at 106.) The Government served Sgt Hutchins 4

10 with a referred charged sheet on January 10, 2014, (App. at 108), and pre-trial proceedings commenced. On January 22, 2014, Sgt Hutchins filed a request to continue the arraignment, which the government immediately opposed. (App. at ) That same day the military judge denied the request. (App. at 231.) On January 28, 2014, Sgt Hutchins filed a motion to abate proceedings. (App. at 158.) Three Article 39(a), UCMJ, sessions followed that critical motion. At the first session, on January 29, 2014, Sgt Hutchins expressly objected to Colonel Richardson--or any Navy/Marine Corps judge--serving as his military judge. (App. at 8.) The military judge denied that objection. (Id.) During that same session, Sgt Hutchins also objected to representation by any counsel detailed from Marine Corps Defense Services Organization (DSO). This latter objection formed the gravamen of his motion to abate proceedings below. (App. at ) As before, the military judge denied the objection in a written ruling on April 11, (App. at ) Given the importance of these two issues to Sgt Hutchins case below, this timely petition for an extraordinary writ of mandamus, pursuant to the All Writs Act, 28 U.S.C. 1651, follows. With the exception of the motions filed with the military judge, no prior actions have been or are pending seeking the same relief in this or any other Court. 5

11 II. Reasons Relief Not Sought Below As discussed in further detail below, the very nature of the relief sought includes a request to disqualify Navy and Marine Corps judges from presiding over this case. Unlawful command influence (UCI) from the Secretary of the Navy, through his specific comments about Petitioner s case, impacts the impartiality of any military judge subordinate to the Secretary of the Navy. As evidence, there is good basis to question the impartiality of the NMCCA opinions, to include an opinion joined by the current Chief Judge of NMCCA (Chief Judge Modzelewski), and more significantly, an opinion joined by the current Chief Judge of the Department of the Navy (then-chief Judge Reismeier). See Hutchins I, supra (considering facts subject to acquittal by the members), and Hutchins III, supra (falsely claiming all motions to attach UCI documents were granted when, in fact, two out of the three motions were denied). (App. at , ) What is more, the Chief Judge of the Department of the Navy (CJDON) is in the reporting chain for all NMCCA and trial-level judges. He either writes their fitness reports or reviews them. Simply as an appearance matter, then, the NMCCA is not able to impartially assess these issues. As a result, Petitioner s case is an appropriate one for this Court to exercise its original 6

12 jurisdiction pursuant to C.A.A.F. R. 4(b)(1). It should do just that. If more is needed, the issues presented herein invoke the foundational underpinnings of this Court. Congress created this Court to provide independent and neutral oversight for the military justice system, to safeguard it against the very type of conflicts and influence for which Petitioner now requests relief. [A] prime motivation for establishing a civilian Court of Military Appeals was to erect a further bulwark against impermissible command influence. United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). III. Relief Sought Petitioner seeks a writ of mandamus ordering Respondent Judge Richardson to: (1) Abate court-martial proceedings until Petitioner is provided an Article 27, UCMJ, military defense counsel that will be detailed and supervised by a detailing authority wholly independent of Col Joseph Perlak, U.S. Marine Corps, and the Marine Corps Defense Services Organization; (2) Recuse himself from presiding over Petitioner s courtmartial proceedings. 7

13 Petitioner also seeks a writ of mandamus ordering Respondent United States to provide Petitioner with that conflict-free detailed counsel. Finally, Petitioner seeks a writ of prohibition barring Respondent United States from detailing to Petitioner s case any judge from the Navy-Marine Corps Judiciary. IV. Jurisdictional Basis for Relief Sought The Supreme Court has recognized that military appellate courts are empowered to issue extraordinary writs... in aid of [their] existing statutory jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, (1999). Notably, this Court is authorized to issue relief pursuant to the All Writs Act, 28 U.S.C. 1651(a), in cases falling within its potential appellate jurisdiction. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, (1966); In re Tennant, 359 F.3d 523, 528 (D.C. Cir. 2004). Because Petitioner is being tried by a general court-martial authorized to impose a dishonorable discharge and more than one year of confinement, his case falls within this Court s potential appellate jurisdiction. See LRM v. Kastenberg, 72 M.J. 364, 368 (C.A.A.F ( To establish subject-matter jurisdiction, the harm alleged must have had the potential to directly affect the findings and sentence. (quoting Ctr. for Constitutional Rights v. United States, 72 8

14 M.J. 126, 129 (C.A.A.F. 2013))); see also Article 67, UCMJ, 10 U.S.C While the writs of mandamus and prohibition should only be invoked in truly extraordinary situations, it is appropriate when a judge s decision amounts to a judicial usurpation of power, or characteristic of an erroneous practice which is likely to recur. United States v. Labella, 15 M.J. 228, 229 (C.M.A. 1983) (citations and internal quotation marks omitted). The Supreme Court has held that three conditions must be met before a court may provide extraordinary relief in the form of a writ: (1) the party seeking the writ must have no other adequate means to attain the relief ; (2) the party seeking the relief must show that the right to issuance of the relief is clear and indisputable ; and (3) even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Cheney v. United States Dist. Court, 542 U.S. 367, (2004) (quotation marks omitted). Application of those factors indicates that issuing a writ of mandamus and prohibition is appropriate in Petitioner's case. Petitioner has no other means to obtain the relief he requests. Relief in the normal 9

15 course of appellate representation is insufficient in this case because Petitioner's fundamental rights to due process and a fair trial are at issue. Petitioner is facing a complex murder/war crime trial before a conflicted military judge, and with a conflicted counsel at his defense table. Under our constitutional system, that result is unacceptable. Given the complexity and costs associated with litigating this type of case, the interests of justice compel the conclusion that it would be a waste of resources to require Petitioner to await appellate review for appointment of conflict-free counsel and a neutral and unbiased military judge. Without these related and fundamental prerequisites, Petitioner is subject to irreparable harm and extraordinary relief is warranted. V. Issues Presented 1. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE MOTION TO ABATE COURT-MARTIAL PROCEEDINGS PENDING THE ASSIGNMENT OF AN INDEPENDENT DEFENSE DETAILING AND SUPERVISORY AUTHORITY AND ASSIGNMENT OF CONFLICT-FREE DETAILED DEFENSE COUNSEL AND, IF SO, WHETHER THIS COURT SHOULD ISSUE A WRIT OF MANDAMUS COMPELLING THAT RELIEF? 10

16 2. WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO RECUSE HIMSELF, GIVEN ANY MILITARY JUDGE WHO FALLS WITHIN THE NAVY-MARINE CORPS JUDICIARY MUST NECESSARILY RULE ON A UCI MOTION THAT WILL IMPACT THE CDJON, CDC, CHIEF JUDGE OF THE NMCCA, AND, IF SO, WHETHER THIS COURT SHOULD ISSUE A WRIT OF MANDUMUS RECUSING THE MILITARY JUDGE AND A WRIT OF PROHIBITION BARRING ANY NAVY OR MARINE CORPS JUDGE FROM PRESIDING OVER PETITIONER S CASE? VI. Statement of Facts Conflict of Interest On August 19 and November 26 of 2013, the undersigned sent s to Major General (MajGen) Vaughn A. Ary, U.S. Marine Corps, Staff Judge Advocate to the Commandant of the Marine Corps. There, he identified the nature of the DSO conflict that now forms one basis for this extraordinary writ. (App. at ) Col Perlak, the current CDC of the Marine Corps, 2 the first began, has a conflict of interest in this case, and, moreover, would be called by the defense to testify as an adverse witness at any retrial. (App. at 209.) Because Col Perlak has a conflict (and because he holds detailing and supervisory authority for all defense counsel within the DSO), 2 CDC is an acronym for Chief Defense Counsel of the Marine Corps. The CDC serves as the Officer-in-Charge of the DSO. He holds detailing authority for all defense counsel within the DSO, which he may delegate to Regional Defense Counsel (RDC) and Senior Defense Counsel (SDC). (App. at 147.) 11

17 all of his subordinates within the Marine Corps DSO are similarly conflicted out. (App. at 147, 210.) The August 19 continued: Col Perlak was the author of the 2012 opinion by the Navy-Marine Corps Court of Criminal Appeals... which affirmed the findings and sentence in Sgt Hutchins case (finding, inter alia, no UCI from the SecNav). As discussed further below, if there is a retrial, there is a significant factual dispute concerning NMCCA s 2012 opinion which can only be resolved through Col Perlak s in-court testimony. 3 (App. at 210.) That factual dispute centers on the following false assertion by the NMCCA: We have granted the appellant s every motion to attach documents to the record... to permit a full and public vetting of the UCI claim. (App. at 402.) In fact, two of the defense motions to attach UCI documents had been denied. (App. at 193, 196.) The Government acknowledged as much. On November 13, 2012, during oral argument before this Court, appellate government counsel, Major Paul M. Ervasti, U.S. Marine Corps, conceded the UCI documents Col Perlak claimed to have publically vetted were returned to the appellate defense counsel by NMCCA, and were in fact not in the record. United States v. Hutchins, USCA Dkt. No , Hr g Tr. 45:12 (Nov. 13, 2012), available at 3 Of note, then-judge Modzelewski concurred with Chief Judge Perlak s authored opinion. (App. at. 400.) She is now the Chief Judge of the NMCCA. 12

18 The undersigned then got to the crux of the matter: Given these facts, and given the language in NMCCA's opinion, there are 2 possibilities: 1. NMCCA was aware that it had denied my motions to attach and returned my documents. NMCCA therefore knowingly made a factually incorrect statement when it claimed to have granted all of the defense motions to attach, and to have conducted a "public vetting." 2. NMCCA was somehow NOT aware that it had denied my motions to attach and returned my documents. NMCCA would therefore had to have affirmed Sgt Hutchins' convictions and validated the SecNav s actions without first reviewing the record or reading the defense briefs. Either scenario is strong evidence of UCI, and evidence that the military justice process has been permanently compromised by the SecNav. The full circumstances can only be developed through Col Perlak's testimony, as well as the testimony of the other 2 judges on the NMCCA panel: CAPT Modzelewski (current Chief Judge of NMCCA) and Col Carberry (currently a trial judge in Hawaii). Hence, Col Perlak will have a personal interest directly adverse to Sgt Hutchins and the defense team at a retrial. As he would be an adverse witness, any of his subordinates in the DSO will be conflicted out of exercising supervisory authority over the defense of this case. (Col Zimmerman, the reserve defense branch head would similarly be conflicted out. Moreover, she was previously an NMCCA judge under then-chief Judge Perlak). I therefore respectfully request a substitute O-6 be appointed to serve as CDC and detailing authority for any retrial of Sgt Hutchins. The substitute will need to be one who is filling a defense billet full time, as the provision of defense services cannot be assigned as a collateral duty, due to the need for independence. As the Marine Corps DSO is conflicted 13

19 out, the next step would be to identify an officer from the Navy. I respectfully request that coordination is made with RADM Crawford, Deputy JAG of the Navy, in order to have CAPT Paul C. Leblanc appointed as acting CDC of the Marine Corps for any Hutchins retrial. CAPT LeBlanc is currently the CO of Navy DSO North in Washington DC. Prior to assuming duties this month at DSO North, CAPT LeBlanc spent the past 3 years as Director of the Appellate Defense Division. In that capacity he had supervisory authority over the Hutchins appeal. Thus, appointing CAPT LeBlanc as acting CDC for a retrial would simply be a continuation of the role he has filled for the past several years. Because CAPT LeBlanc oversaw the successful reversal of Sgt Hutchins' convictions by CAAF, there would be no appearance of the Government manipulating the defense bar through appointment of an acting CDC. Moreover, as Sgt Hutchins' detailed appellate counsel, I do not object to CAPT LeBlanc being designated acting CDC. (App. at ) MajGen Ary did not respond. (App. at 171.) After the case was remanded to the convening authority, the undersigned sent a follow-up to MajGen Ary on November 26, There, the undersigned stated: I hereby renew my objection to any exercise of defense supervisory/detailing authority in this case by Col Perlak or any of his subordinates. I further respectfully request that coordination be made with OJAG in order to have CAPT Paul C. LeBlanc, JAGC, USN, assigned as the replacement supervisory/detailing authority. (App. at 212.) As before, MajGen Ary did not respond. (App. at 172.) 14

20 So two days before his arraignment, Sgt Hutchins ed MajGen Ary directly: Good afternoon sir[,].... I refuse to be brought to court for a contested retrial when I have not been given a lawyer who can fully represent me.... I intend to have my lawyer fully argue the fact that I can t receive a fair trial because of what the SecNav has been doing. This argument will include pointing out that Col Perlak s ruling on my case in 2012 contained false statements, and that these false statements were beneficial for the SecNav. Therefore, if even judges are being unlawfully influenced then there is no way I can receive a fair trial. My current assigned counsel, Capt Skoczenski cannot make this argument because he is not free to challenge Col Perlak. This is because Capt Skoczenski works for Col Perlak. On the DSO website it says that it is a global criminal defense law firm. Sir, a lawyer from a law firm cannot be on the opposite side of a case as the same person who is in charge of that firm. (App. at 213.) This time, MajGen Ary responded. (App. at 173.) He directed trial counsel to ensure the conflict issue was brought to the military judge s attention. (App. at 214.) Nevertheless, two days after Sgt Hutchins wrote the , he found himself in court, at arraignment, sitting next to a lawyer subordinate to Col Perlak. That lawyer, Captain Eric J. Skoczenski, U.S. Marine Corps, attempted to provide clarity on the issue: Sergeant Hutchins isn t actually requesting Navy counsel specifically, just that the detailing authority of 15

21 counsel come from outside of the Defense Services Organization of the Marine Corps, sir. (App. at 7.) The military judge asked the Government for its position on the issue. (App. at ) Hedging, the Government first denied a conflict existed, (App. at 11), but then stated, It is not the government s responsibility to reach a conclusion about whether a conflict exists. (Id.) The following exchange then occurred: MJ: Okay. So the reason that the government is pushing this through with today s proceedings [the arraignment] rather than simply allowing the defense bar to take it s time in doing this is to simply force their hand and make them make a decision in this regard. TC: Yes, sir. MJ: Is that accurate? TC: Yes, sir. 4 (App. at 11.) The Government went so far as to call the conflict issue scurrilous. (App. at 15.) Presciently, the military judge made a promise. Sgt Hutchins, he stated, we re not going to go any further in this until we resolve this 4 More than fifty years before this exchange, the Supreme Court recognized the arraignment to be a critical stage of a criminal proceeding, triggering the Sixth Amendment guarantee to counsel. See Missouri v. Frye, 132 S. Ct. 1399, 1405 (2013) (citing Hamilton v. Alabama, 368 U.S. 52 (1961)). Discussed in greater detail below, that guarantee includes the right to conflict-free counsel. 16

22 issue to make sure that you have an attorney sitting next to you that can fully represent you.... (App. at 12.) By February 13, 2014, the date of the second Article 39(a) session, the conflict issue still had not been resolved. LtCol Plummer had sought assistance from the local Navy Defense Service Office. (App. at 230.) He had sought assistance from the Army Trial Defense Service. (App. at 269.) These calls for assistances were unavailing. (App. at 374.) So the military judge directed the Government to take one of two courses of action: So, again, just to make it abundantly clear here, two options are available. Either the government, Major General Ary s office finds a substitute defense chain and provides adequate conflict-free counsel or, in the alternative, if the government opts not to go that route... then I want an independent assessment that I can use as a basis upon which to make a ruling as to whether there is good cause shown or not. (App. at 46.) These options are addressed in turn. Regarding a substitute chain, on February 20, 2014, MajGen Ary wrote a letter to Commander, Naval Legal Service Command. (App. at 308.) There, he requested the Navy provide Captains Skoczenski and Lovell--a second, newly detailed counsel from the Marine DSO--with supervisory attorneys[.] (Id.) These attorneys, according to his plan, would write and review the fitness reports of Captains Skoczenski and Lovell until the completion of their representation of Sergeant Hutchins. (Id.) 17

23 Significantly, MajGen Ary did not provide a time estimate for completion of this fitness-reporting relationship. Nor did he ask for independent detailing authority. In fact, he acknowledged Captains Skoczenski and Lovell had already been detailed by the Marine DSO. (Id.) He did note, however, that the requested supervision by Navy personnel would extend to all cases to which Captain Skoczenski and Captain Lovell are currently detailed. (Id.) Two weeks later, RADM Crawford denied the request, characterizing it as premature. (App. at 310.) He desired to wait until the military judge made a finding on the conflict issue. (Id.) As for the independent assessment, the Government did not offer one. (App. at 323.) Sgt Hutchins, by contrast, did. LtCol Colby C. Vokey, U.S. Marine Corps (Ret.), former RDC, Western Region, , reviewed nine of the appellate exhibits that are offered in support of this extraordinary writ. Upon review of this information, it is my professional opinion that the circumstances of this case present a clear conflict of interest for Sergeant Hutchins current detailed defense counsel and any attorney within the DSO to represent Sergeant Hutchins. My opinion is based on my interpretation of JAGINST D, PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GEENERAL of May 1, 2012, with particular emphasis on: Rule 1.7 Conflict of Interest: General Rule; Rule 1.10 Imputed Disqualification; and Rule 1.12 Former Judge or Arbitrator

24 (App. at ) By his view, then, three independent rules of professional conduct dictate a finding of conflict. Finding differently, the military judge dismissed LtCol Vokey s independent assessment because, in his view, it assum[ed] that the UCI at N-M.C.C.A. issue would be relevant at trial. (App. at 374.) According to the military judge s ruling of April 11, 2014, that assumption was fatal. (Id.) He opined: C.A.A.F. s decision in July 2013 which set aside the findings and sentence has mooted any alleged error or improper influence on the part of N-M.C.C.A. When C.A.A.F. reversed N-M.C.C.A., knowing that the UCI allegation was out there and subject to its own appellate review and potential relief powers, it reset the proceedings and returned the parties to where they stood before the first trial. The appellate proceedings were thus ultimately resolved in the accused s favor and the parties are now starting over with the accused s rights being totally reinstated/refreshed. To go back to the first-level appellate decision and look for error at this point is moot. (App. at 376.) The military judge then expressly prohibited discovery on this issue: Neither side will be allowed to inquire via the discovery process or attack via motion whether N-M.C.C.A. was tainted by UCI from SecNav comments.... (Id.) Additional facts not included herein are presented in the argument section below. 19

25 Disqualification of Navy-Marine Corps Trial Judiciary Not long into the January 29, 2014, Article 39(a) hearing, Sgt Hutchins lodged a second objection that forms an additional basis for this extraordinary writ: Sir, for the record, I would just like to state that I object to yourself or any military judge who falls directly under the Secretary of the Navy being my military judge due to the undue command influence case that I m raising with the Secretary of the Navy down the road. (App. at 8.) Though the military judge refused to recuse himself, he invited briefing on the issue. 5 (Id.) Sgt Hutchins accepted the military judge s invitation. In an to the military judge, submitted pro se due to the pending counsel conflict issue[,] Sgt Hutchins cited Weiss v. United States, 510 U.S. 163 (1994), to support his fleet-wide disqualification contention. (App. at ) He then stated: Sir, the Supreme Court said that you can only give me due process because you are insulated from unlawful command influence. Because the SecNav controls the Judge Advocate General of the Navy, and the Judge Advocate General controls you, then you are not insulated from the SecNav. That is true for any other Navy or Marine judge. So I object to you or anyone else who falls under the SecNav from serving as a judge in my case. (App. at 235.) 5 He then stated in relevant part, I am aware of your concerns about the appellate court that you have raised and whether you believe that has been subject to... undue command influence.... (App. at 8.) But to him, this was an issue that could be flush[ed] out at a later time. (Id.) 20

26 The military judge readdressed this disqualification issue at the second Article 39(a), convened on February 13th. He said, Sergeant Hutchins, is it your desire to address this with me personally or would you like to use one of the counsel sitting there next to you to address this on your behalf? (App. at 26.) Sgt Hutchins answered, I m not an attorney, sir, and until I have an attorney that is conflict-free, in what I believe is conflict-free, I don t want to go too much further... [I]f you could just basically say who your RS and RO are and -- (App. at 27.) First of all, responded the military judge, my reporting senior is Colonel Daugherty, who is the Chief Judge for the Navy and Marine Corps trial Judiciary. He is a Marine. (App. at 28.) He continued: His reporting senior; and therefore, my reviewing officer, is the Chief Judge of the Department of the Navy, Captain Reismeier. Captain Reismeier works for the [JAG], who ultimately does, in fact, fall under, therefore, the Department of the Navy. Captain Reismeier also was an appellate judge prior to becoming the Chief Judge for NMCCA, and was there for some period of time during which your case was undergoing the appeals. At this point, I m not certain if he had any direct knowledge or participation in this case. I do have a quiry [sic] into him, but he had to go back and take a look at his files. He knows that he was there at some point during it, but I don t believe he authored or sat on any of your panels directly. (App. at ) The military judge later recalled the en banc opinion addressed above, Hutchins I, supra, but said he would 21

27 have to take a look at it to be certain. (App. at 29.) CAPT Reismeier did, in fact, sign onto that en banc opinion. (App. at 421.) So did Col Perlak, his successor as Chief Judge. (Id.) When it came time to address Sgt Hutchins objection to members of the Navy-Marine Corps Trial Judiciary presiding as judges over his case, the military judge analogized his colleagues to his family: Like my brothers and sisters on the bench before me, who have made tough calls about actions by other senior members of the United States Marine Corps, the Department of the Navy, and even the executive and legislative branches, I believe that a reasonable person would not question my impartiality here. (App. at 33.) He continued: Even if I were to recuse myself, and therefore, every other Marine and Navy judge from hearing this case, this Court s jurisdiction would still fall under the Department of the Navy; which means, amongst other things, that your case would still be appealed to the Navy/Marine Corps Court of Criminal Appeals. So even recusing myself, if I opted to go down that route and bring in a judge from a sister service, it doesn t cure the problem. The Department of the Navy would still control the jurisdiction in your case and whatever concerns you have about the trial judge would likewise be concerns that would go to the way that your case is handled throughout the proceedings, including your appeal. (App. at 34.) Evidently, the military judge did not consider that, under the UCMJ, there are other mechanisms to elevate Petitioner s case from the Department of the Navy. See Article 22, UCMJ. 10 U.S.C

28 As with the conflict issue, additional facts pertaining to disqualification are contained below. But first, some additional context is necessary. UCI Background In November 2009, while Sgt Hutchins case was in the midst of appellate review and the annual Naval Clemency and Parole Board process, Secretary of the Navy Ray Mabus, Jr. (SecNav), issued a press release and gave telephonic interviews as part of a coordinated series of widely disseminated articles appearing, inter alia, in the Associated Press, The Marine Corps Times, and The North County Times. (App. at ) The Marine Corps Times article noted SecNav had reviewed transcripts and trial records in each of the eight Hamdaniya prosecutions. (App. at 347.) During the North County Times telephonic interview, SecNav stated of Sgt Hutchins and his squad: None of their actions lived up to the core values of the Marine Corps and the Navy. This was not a fog of war case occurring in the heat of battle. This was carefully planned and executed, as was the cover-up. The plan was carried out exactly as it had been conceived. (App. at 350) SecNav believed Sgt Hutchins sentence was commensurate with the offense, that he had already received sufficient clemency from the convening authority, and that he would not receive additional clemency. Id. As justification (and in contradiction to the members not 23

29 guilty findings), SecNav noted to the Marine Corps Times that the killing was: Id. [S]o completely premeditated, that it was not in the heat of battle, that not only was the action planned but the cover-up was planned, and that they picked somebody at random, just because he happened to be in a house that was convenient. He was murdered... It wasn't somebody coming apart under pressure. It wasn't in the middle of action, in the middle of battle. It was completely planned and completely executed. That was disconcerting. SecNav also noted that he was surprised that members of the squad had been permitted to remain on active-duty and directed that they be immediately separated. I thought that by leaving them on active duty, he remarked, it degraded the actions of tens of thousands of other Marines and sailors who served... and didn't act this way. The interview with SecNav was the cover story of the Marine Corps Times: 24

30 Hutchins I The NMCCA Distorts the Record? On April 22, 2010, in Hutchins I, the NMCCA issued its en banc opinion, reversing the findings and sentence due to the improper severance of a detailed defense counsel on the eve of trial. Without noting the members excepted the kidnapping (and housebreaking) predicate-offense language from the conspiracy charge, the NMCCA wrote that Sgt Hutchins was convicted of conspiring to kidnap an Iraqi male. (App. at 422.) The NMCCA also failed to note Sgt Hutchins was found not guilty of the stand-alone kidnapping charge. At the time, the current Chief Judge of the Navy, Captain Christian J. Reismeier, JAG Corps, U.S. Navy, served as Chief Judge, U.S. Navy-Marine Corps Court of Criminal Appeals. (App. at 421.) He concurred with the judgment of the en banc court. (App. at 429.) So did Judge Perlak, who would later write Hutchins III, the opinion denying Hutchins relief. (Id.) Writing separately in Hutchins I, Judge Price agreed that the severance was improper but, echoing SecNav talking points, did not find it prejudicial for findings. (App. at ) As noted above, SecNav had noted that the killing was: [S]o completely premeditated, that it was not in the heat of battle, that not only was the action planned but the cover-up was planned, and that they picked somebody at random, just because he happened to be in a house that was convenient. He was murdered... It wasn't somebody coming apart under pressure. It wasn't in the middle of action, in the middle of 25

31 battle. It was completely planned and completely executed. That was disconcerting. Fuentes, supra. Similarly, Judge Price, without any reference to the members not guilty findings, determined there was no valid mental-health defense (i.e. Sgt Hutchins did not come apart under pressure ), and determined that Sgt Hutchins had targeted a man with no suspected insurgent ties because he was a military-aged male who lived near a suspected insurgent, after their plan to kill a suspected insurgent was compromised. Hutchins I, 68 M.J. at Reinforcing SecNav, Judge Price later wrote there was contingency planning to abduct and kill any nearby military-aged male in the event their efforts to abduct suspected insurgent(s) was compromised. Id. The majority opinion did not note Judge Price s inconsistency with the members findings, and only reiterated that the improper severance of counsel was not amenable to a speculative prejudice analysis. 7 (App. at ) In January 2011, this Court remanded the case back to the NMCCA. In supplemental briefs, Sgt Hutchins raised the issue of 6 Petitioner cites to the reporter here because page 636 of Hutchins I is not in the Appendix. 7 The NMCCA made these errors despite having previously received multiple pleadings from Sgt Hutchins in which he vociferously objected to any allegations that he was found guilty of conspiring to kill a randomly selected victim, and invited NMCCA s attention to the members findings. (App. at ) 26

32 unlawful command influence (UCI). (App. at ) Sgt Hutchins expressly raised the factual misrepresentations in Hutchins I, focusing in specific detail on the errors in Judge Price s opinion. (Id.) The NMCCA panel assigned to hear the remanded case consisted of Colonel (Col) Joseph Perlak U.S. Marine Corps (now Chief Defense Counsel of the Marine Corps), CAPT Moira Modzelewski JAGC, USN (now Chief Judge, U.S. Navy- Marine Corps Court of Criminal Appeals), and Col James Carberry USMC. Hutchins III The Distortion Continues? On May 18 and 24 of 2011, Sgt Hutchins moved the NMCCA to attach documents to the record of trial in support of his UCI issue. (App. at 193, 196.) These documents contained the news articles with SecNav comments, declarations on the dissemination of these statements, and documentation of the impact those statements had on the clemency JAG certification process. (Id.) Not one month later, on June 2 and 6, the NMCCA denied two of the three motions to attach the UCI documents. (Id.) In a subsequent Government Answer brief, the Government argued the denial of the defense motions to attach was dispositive on the UCI issue, as the denial of the motions meant the defense had no evidence to prove its UCI claim on appeal. (App. at ) On March 22, 2012, the NMCCA issued Hutchins III, affirming the findings and sentence. (App. at ) In rejecting the 27

33 UCI issue, Col Perlak did not address the factual errors in Hutchins I or the errors committed by Judge Price in attributing conduct to Sgt Hutchins that had been subject to not guilty findings. (App. at ) In fact, Col Perlak s opinion made no reference to Judge Price, and only asserted that any defense challenge to Hutchins I was unsupported. (App. at 403.) wrote: Regarding the underlying facts of the case, Col Perlak The court-martial received testimony from several members of the squad that indicated the intended ambush mission morphed into a conspiracy to deliberately capture and kill a high value individual (HVI), believed to be a leader of the insurgency. The witnesses gave varying testimony as to the depth of their understanding of alternative targets, such as family members of the HVI or another random militaryaged Iraqi male. (App. at 401 (emphasis added).) Although noting the varying testimony, Col Perlak s opinion did not recite the charges, specifications, or language to which the members had made their not guilty findings. (App. at ) Col Perlak s opinion also did not engage in any substantive analysis of SecNav public statements, instead indicating in a footnote that SecNav statements were limited to expressing surprise and disappointment with the sentences awarded and the prospect of continuing service for the personnel involved in this case. (App. at 402.) Col Perlak also omitted: (1) SecNav declaration that he had specifically reviewed the trial 28

34 transcripts; (2) SecNav promulgation of factual findings; and (3) SecNav commentary on sentence appropriateness. See generally Hutchins III, supra. Significantly, as discussed above, Col Perlak s opinion also falsely claimed the NMCCA granted all the defense motions to attach UCI-related documents to the record. (App. at 402 ( We have granted the appellant s every motion to attach documents to the record... to permit a full and public vetting of the UCI claim. ) (emphasis added).) In fact, two of the defense motions to attach UCI documents had in fact been denied. (App. at 193, 196.) Once Col Perlak assumed duties as Chief Defense Counsel of the Marine Corps, becoming head of the Marine DSO, he gained supervisory authority over all Marine defense counsel. (App. at 147.) He is now, in essence, the managing partner of a global criminal defense law firm comprised of over 60 Marine judge advocates.... See Marine Corps Defense Services Organization Homepage, (last visited Apr. 18, 2014). 29

35 VI. Reasons Why this Writ Should Be Granted 1. THIS COURT SHOULD ORDER COURT-MARTIAL PROCEEDINGS ABATED PENDING THE ASSIGNMENT OF AN INDEPENDENT DEFENSE DETAILING AND SUPERVISORY AUTHORITY AND CONFLICT-FREE DETAILED DEFENSE COUNSEL. THE MILITARY JUDGE ERRED WHEN HE FOUND THIS ISSUE TO BE NON- JUSTICIABLE. UCI IS A LIVE ISSUE, AS IT IMPACTS A SERVICEMEMBER S DUE PROCESS RIGHT TO A FAIR TRIAL. A. The right to conflict-free counsel In United States v. Lee, this Court reiterated the Supreme Court s bedrock guarantee that a constitutionally fair criminal trial must include the right to representation by a conflict free counsel: Where a constitutional right to counsel exists... there is a correlative right to representation that is free from conflicts of interest." United States v. Lee, 66 M.J. 387, 388 (C.A.A.F. 2008) (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)). And the Supreme Court is unambiguous in emphasizing that a criminal accused has a right to representation by conflict-free counsel at all critical stages of trial. See Massiah v. United States, 377 U.S. 201 (1964). One critical stage, of course, includes arraignment. 8 See Frye, 132 S. Ct. at 1405 (citing Hamilton v. Alabama, 368 U.S. 52 (1961)). 8 For Petitioner, that critical stage has come and gone. 30

36 For Navy and Marine Corps judge advocates, JAGINST D provides ethics guidance on conflicts of interest, and serves to codify the Model Rules of Professional Conduct. Of relevance to this case, Comment 4 to Rule 1.7 states: Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a covered attorney's ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the covered attorney's other responsibilities or interests. These conflicting responsibilities or interests can be professional, commercial, or personal.... The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the covered attorney s independent professional judgment.... Rule 1.7, Cmt. 4 JAGINST D. Of further relevance, Rule 1.10 notes that conflicts of interest can be imputed, with the exception that judge advocates within the same office can represent clients with adverse interests to each other. Thus, there is an exception for a horizontal imputation of a conflict between similarly situated attorneys. But for a vertical conflict between senior/subordinate (such as in Lee), there is no such exception. Moreover, Comment 2 to Rule 1.10 instead requires a functional analysis of the facts in a specific situation to include whether independence of judgment can be maintained. Rule 1.10, Cmt. 2 JAGINST D. Comment 5 to Rule 1.10 defines this independence of judgment: 31

37 Maintaining independent judgment allows a covered USG attorney to consider, recommend, and carry out any appropriate course of action for a client without regard to the covered USG attorney's personal interests or the interests of another. When such independence is lacking or unlikely, representation cannot be zealous. Rule 1.10, Cmt. 5 JAGINST D. Finally, Rule 1.12 notes that anyone who has previously served as a judge in an individual s case is barred from later representing that same individual. See Rule 1.12, JAGINST D. C. Any defense counsel who falls under the authority of Col Perlak is conflicted out of representing Petitioner. Given Col Perlak s current billet as CDC, any subordinate defense counsel within the Marine Corps DSO will have a conflict of interest in representing Petitioner. As will be discussed further below, a competent defense of Petitioner will require detailed defense counsel to zealously and robustly establish that unlawful command influence has infected all proceedings in this case, to include the prior NMCCA opinion authored by Col Perlak (the magnitude of the harm being commensurate with the magnitude of the relief). This requirement will therefore pose a conflict of interest for any subordinate counsel who is placed in the impossible position of representing his client while, at the same time, attacking his boss on the stand. 32