                        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. §§ 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

Appellee’s 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.


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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

Appellee’s 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
           “GOOD CAUSE” ON THE RECORD FOR THE
           REPLACEMENT OF APPELLANT’S 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]’S
          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



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United States v. Hutchins, No. 10-5003/MC


to represent the accused.   Article 27(a)(1), UCMJ, 10 U.S.C. §

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. § 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.      Dep’t of

the Navy, Judge Advocate General Instr. 5800.7E, Manual of the

Judge Advocate General § 0130b(1) (June 20, 2007).

     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.   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.




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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


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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. § 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




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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, Appellee’s 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 “didn’t appear



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United States v. Hutchins, No. 10-5003/MC


to be an issue” 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


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United States v. Hutchins, No. 10-5003/MC


preparation by the defense.   After noting Appellee’s pretrial

confinement status, the defense motion expressly stated that

“[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.”    The

defense further contended that the circumstances requiring a

continuance until the proposed new trial date “constitute an

assertion of Sergeant Hutchin’s [sic] 6th Amendment right to the

effective assistance of counsel,” adding that “failure to grant

it [the continuance] will strip Sergeant Hutchins of his

fundamental 6th Amendment right to the effective assistance of

counsel.”

     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 Bass’s 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




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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:    “One of the detailed defense counsel for the accused,

Captain A. G. Bass, is separating from active duty effective 1

July 2007.”    Second, the motion connected Captain Bass’s change

in status to a change in the composition of the defense team:

“For this reason, he is being released as detailed counsel and

Major B. Cosgrove, USMCR is being detailed as his replacement.”


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United States v. Hutchins, No. 10-5003/MC

Third, the motion directly connected the request for a

continuance to Appellee’s right to counsel:   “Given 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.”

     The motion expressly described Appellee’s 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 Appellee’s right to

counsel:   “The underlying bases for a continuance constitute an

assertion of Sergeant Hutchin’s [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 . . . .”   Consideration on the motion was deferred until

the June 11-13 hearing session.




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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 “in the prior session of the Court, the

accused was represented by Captain Bass, Lieutenant Colonel

Smith, and Mr. Brannon.”   The military judge then observed that

“Captain Bass is currently not present.”    The military judge

stated that he had “been informed by counsel that he [Captain



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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.”

      The military judge further observed that “Lieutenant

Colonel Cosgrove currently is not present.”   At that point, he

asked defense counsel to “inform me on the status of both, just

to clarify on Captain Bass and Lieutenant Colonel Cosgrove, and

then also what’s happening with Lieutenant Colonel Cosgrove

today.”

      The detailed defense counsel, Lt. Col. Smith, responded

that “Captain 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 -- .”

      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 “understanding” 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 Bass’s departure, asking when he left active

duty.    Lt. Col. Smith, the detailed defense counsel, provided

the following ambiguous answer:

        I’m 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 Appellee’s

right to select individual military counsel, and the impact of

any such request on his representation by Lt. Col. Smith.    In



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United States v. Hutchins, No. 10-5003/MC

that context, the military judge provided the following advice

to Appellee regarding Captain Bass:      “Now you have the right to

all your detailed defense counsel including Captain Bass;

however, once Captain Bass leaves active duty, there’s no way

that the Marine Corps can keep him on as your detailed defense

counsel.”   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 “no way” 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


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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 Appellee’s 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 Appellee’s court-martial were “mutually

confused regarding Capt Bass’[s] active duty status,” and the

other issues of severance.   Hutchins, 68 M.J. at 627.    In that



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United States v. Hutchins, No. 10-5003/MC

context, the court concluded that “the military judge

effectively severed the attorney-client relationship” 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 counsel’s 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 counsel’s 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




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United States v. Hutchins, No. 10-5003/MC

Appellee in this case under Article 59(a), UCMJ, 10 U.S.C. § 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), “[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.”   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

“[f]or other good cause shown on the record.”   R.C.M.

505(d)(2)(B)(iii).   Under the Rule, “‘good cause’ includes

physical disability, military exigency, and other extraordinary

circumstances which render the member, counsel, or military



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United States v. Hutchins, No. 10-5003/MC

judge unable to proceed with the court-martial within a

reasonable time.”   R.C.M. 505(f).   The Rule further states that

good cause “does not include temporary inconveniences which are

incident to normal conditions of military life.”   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 “with the express

consent of the accused.”   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

“no way” 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 Bass’s 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. §§ 12301, 12303

(allowing for voluntary and involuntary activation of reserve

members under specified conditions); see also, Dep’t 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 “by the military judge upon application

for withdrawal by the defense counsel for good cause shown.”

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.



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United States v. Hutchins, No. 10-5003/MC

     B.   CONSIDERATION OF SEVERANCE DURING APPELLEE’S 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 Bass’s 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 Bass’s 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


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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 Government’s 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 “[a]bsent government

misconduct, the routine separation of a judge advocate from

active duty normally terminates any attorney-client relationship

. . . .”), with United States v. Eason, 21 C.M.A. 335, 45 C.M.R.

109, 111 (1972) (observing that an attorney-client relationship

“may not be severed or materially altered for administrative

convenience”).   Use of the word “normally” 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. §§ 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


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United States v. Hutchins, No. 10-5003/MC

that the record contained an accounting of Captain Bass’s

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.




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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

Appellee’s 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 “[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


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United States v. Hutchins, No. 10-5003/MC

constitution of the trial”) (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 “errors in the trial mechanism so serious that ‘a

criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence’” (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).




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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 “the error materially prejudices the

substantial rights of the accused.”   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

team’s 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 Bass’s positive relationships with the military

judge, lead defense counsel, and Appellee; his expertise in


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United States v. Hutchins, No. 10-5003/MC

mental health issues; and his preparation for sentencing.

After reviewing the defense trial team’s 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


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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




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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. § 866(c) (2006).




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