WASHINGTON — A San Diego-based Marine who was convicted of murder in wartime now will shine a light on how much influence politicians can exert on military justice.
Navy Secretary Ray Mabus and former Sgt. Lawrence Hutchins III both have much at stake in the U.S. Court of Appeals for the Armed Forces’ decision this week to reconsider Hutchins’ case. For Mabus, a onetime Mississippi governor, the case is about keeping a reputation for sound judgment. For Hutchins, it’s about regaining lost freedom.
Whatever happens will reopen some uncomfortable questions about military justice, pitting against each other two men who are at opposite ends of the spectrum: one a political appointee atop the Department of the Navy, the other an incarcerated private.
“The fact that the highest military court has to reasonably ask itself if the secretary of the Navy has unlawfully manipulated the process means that, regardless of who is ultimately victorious, the integrity of the military justice system as a whole has already been fatally compromised,” S. Babu Kaza, Hutchins’ attorney, said by e-mail.
Navy Capt. Pamela Kunze, a spokeswoman for Mabus, said Tuesday that “the Department of the Navy does not comment on cases currently undergoing the appellate process.”
Hutchins, who was convicted of killing an unarmed Iraqi man, says public statements by Mabus unfairly tilted courts and review panels against him.
His case is apparently the first alleging what’s called unlawful command influence during the Iraq or Afghanistan wars to reach the nation’s highest military appeals court, said Kaza, who’s a major in the Marine Corps Reserve. That alone raises the profile of an issue that’s long bedeviled military courts.
“Undue and unlawful command influence is the carcinoma of the military justice system,” Judge Herman Gierke of the military appeals court wrote in a 2004 case, “and when found, must be surgically eradicated.”
Unlawful command influence is what happens when higher-ranking authorities sway their underlings, or seem to; it’s a particular problem in a rigid hierarchy such as the military. The 2004 case, for instance, involved a sailor who allegedly deserted his Navy construction battalion at Gulfport, Miss. When his defense attorneys sought helpful testimony from fellow sailors, they ran into a brick wall.
“My (commanding officer) said we cannot help. . . . End of story,” one sailor told the attorneys, an appeals court noted.
Judges threw out the case, which never made a public splash. The Hutchins case, by contrast, gained worldwide notoriety.
A military panel convicted Hutchins in 2007 of unpremeditated murder for his role in the killing of an unarmed, 52-year-old Iraqi man in the town of Hamdani, near battle-torn Fallujah. Busted to private, Hutchins is being held at Naval Consolidated Brig Miramar, about 10 miles north of downtown San Diego.
Four other Marines and a Navy corpsman serving with the 3rd Battalion, 5th Marine Regiment, pleaded guilty to lesser charges. Other enlisted men were found guilty, with some subsequently raising various legal appeals.
Marine Corps Cpl. Marshall L. Magincalda Jr., of Manteca, Calif., for one, was convicted of conspiracy. It took 857 days for superior officers to complete a formal review of Magincalda’s case, far longer than reviews are supposed to take. An appeals court called the delay unreasonable but offered no relief. Magincalda is now free, having served his sentence.
Hutchins is serving an 11-year sentence that could expire in July 2015 at the earliest, unless he’s granted parole before that. The five-member U.S. Court of Appeals for the Armed Forces will consider the unlawful command questions next fall.
Lower military appeals courts have confronted similar questions previously, finding that even the appearance of unlawful command influence can taint justice.
In 2009, for instance, the U.S. Navy-Marine Corps Court of Criminal Appeals dismissed charges against Marine Lt. Col. Jeffrey R. Chessani, who’d been accused of failing to investigate the November 2005 killings of civilians in the Iraqi town of Haditha. The same Marine officer who investigated the killings served as the top legal adviser to the Marine commander who convened the court-martial.
“An objective, disinterested observer, fully informed of all the facts and circumstances, would harbor significant doubt about the fairness of this proceeding,” the Navy-Marine Corps appellate court concluded.
Appearances also will arise in Hutchins’ case.
In November 2009, while Hutchins was seeking clemency, Mabus publicly called the Marine’s actions “premeditated” and said Hutchins wouldn’t receive further clemency. Two months later, the clemency board rejected Hutchins’ request for leniency.
For other reasons, a lower appeals court reversed Hutchins’ conviction in April 2010. He was freed. Against the recommendations of his advisers, the Navy judge advocate general, who reports directly to Mabus, directed further appeal. The conviction was reinstated and Hutchins went back to prison.
“Secretary Mabus’ diatribes are utterly unprecedented, in that a sitting service secretary has criticized the outcome of an ongoing case . . . and used this admonishment as part of a calculated media blitz,” Kaza wrote in a brief.
A lower appeals court rejected these arguments, noting that Mabus made his comments well after the trial and sentencing.
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