Hutchins a little more

Navy Times reports:

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Photo: AP/Navy Times

A military judge has allowed a Marine sergeant convicted of murder in one of the biggest war crimes cases to emerge from the Iraq war to walk free, nearly two months after a military appeals court ruled he had an unfair trial. . . . Hutchins had been serving an 11-year sentence. The others in his squad served less than 18 months.

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

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

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393.

Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?

WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVY-MARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL?

WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELLANT’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGHOUT TRIAL?

Appellant will file a brief in accordance with Rule 24 in support of the certified issues on or before the July 7, 2010. Appellee will file an answer no later than 30 days after the filing of Appellant’s brief. A reply to Appellee’s answer may be filed by the Appellant no later than 10 days after the filing of Appellee’s answer.

Dwight Sullivan says:

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

In Miller the AFTJAG certification included the following issues:

II. WHETHER OPINIONS OF THE AIR FORCE COURT OF CRIMINAL APPEALS ARE SELF-EXECUTING.

III. WHETHER, PRIOR TO THE EXPIRATION OF THE TIME PERIOD DURING WHICH RECONSIDERATION CAN BE REQUESTED OR CERTIFICATION BY THE JUDGE ADVOCATE GENERAL SOUGHT, AN AIR FORCE COURT OF CRIMINAL APPEALS OPINION IS "FINAL" OR REMAINS "INCHOATE."

IV. WHETHER ARMY OFFICIALS PREMATURELY SOUGHT TO RELEASE APPELLEE FROM THE UNITED STATES DISCIPLINARY BARRACKS BASED UPON UNOFFICIAL NOTIFICATION BY DEFENSE COUNSEL OF AN INCHOATE, NON-SELF-EXECUTING OPINION OF THE AIR FORCE COURT OF CRIMINAL APPEALS WITH NO DIRECTION FROM A CONVENING AUTHORITY AS REQUIRED BY ARTICLE 66(e), UCMJ.

Miller held that:

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

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

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

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