An accused has a limited right to counsel in the military. A very common event for defense counsel is PCS, release from active duty, and orders to deployment. Marine Corps Times reports:
A military appeals court has thrown out the 2007 conviction of a Marine infantry squad leader accused of murdering an innocent man in the Iraqi town of Hamdaniya.
Pvt. Lawrence G. Hutchins III, a former sergeant now serving an 11-year sentence in the military prison at Fort Leavenworth, Kan., will be released from confinement if the Navy does not appeal the court’s Thursday ruling, his attorney, Capt. Babu Kaza, told Marine Corps Times. However, Hutchins also could face a new set of charges if the Marine Corps wants to readdress his case.
In United States v. Hutchins, (en banc) decided 22 April, the court addressed the issue of a defense counsel who is voluntarily leaving active duty. In other words does it make a difference if the severance is a result of the counsel’s personal desire to deploy for the career benefit or to leave active duty to move to a good civilian job, as opposed to the situation where the counsel must leave active duty because there is no longer a contractual relationship or the military says ‘I need you’ in Iraq and there’s no choice?
The issue has been addressed for a defense counsel who wants to remain on active duty to continue the representation. That is OK, so long as there is not contract limitation. The issue has been addressed for a defense counsel who wants to continue representation as a civilian (a post-trial employment ethics issue). That is OK so long as the post-service representation is pro bono.
Dwight “ML” Sullivan points out: United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), petition denied, __ M.J. ___, No. 10-0199/CG (C.A.A.F. Apr. 9, 2010) (that a defense counsel’s six-month deployment to Iraq justified severance of the attorney-client relationship.).
In Garcia the accused objected to severance of the relationship, but the military judge ruled that good cause was shown.
Appellant objected to releasing LT Burgtorf because the new defense counsel had not been present at the Article 32 investigation, which had not been recorded. The military judge found that Appellant had an attorney-client relationship with LT Burgtorf, ruled that good cause had been shown to release LT Burgtorf, and accordingly released him, noting, among other things, that the assistant defense counsel, who remained detailed, had been present at the Article 32 investigation. (R1 at 97-98.)
So, is having more than one counsel a get-out card? And perhaps the guilty plea in Garcia saved the issue for a different case.
What if the remaining counsel is the one who is second chair because they’ve only been a lawyer for a few minutes and it’s the experienced first chair being released. Do we care? Does it matter if the defense counsel is getting orders voluntarily? Should it?
Do we care about what message we send an accused, the military as a whole, the public, about the duties of being a defense counsel?
There are potentially two other perspective to the issue of when counsel can be replaced.
1. I have two appellate cases in which a part of appellant’s IAC claim is that the defense counsel hurried up his case and didn’t properly investigate because they wanted to make a (career enhancing) IA or deployment to Iraq of A/stan.
2. What about lengthy delays caused by the government and needed by the defense to properly investigate and prepare a very complex case. According to Garcia it doesn’t matter. An accused can be forced to change horses in mid-stream.
A great deal of criticism might be given about how NMCCA resolved Hutchins. What I’m afraid of is that people will ignore some genuine systemic problems and issues because they are frustrated with the opinion or the judges who wrote or how they wrote. Hutchins is not an unusual case in the frequency with which defense counsel are being changed out. In the common UA/Missing Movement case a change in counsel is not that hard (except maybe in LTC Lakin’s case). Defending against an unauthorized absence is different from murder. It is the increasingly common complex cases that take time to get to the military justice process and trial where mid-stream changes of counsel can have deletrious effects on a defense.