WASHINGTON - A Marine convicted of wartime murder and a former Mississippi governor who is now atop the U.S. Navy indirectly dueled Tuesday before the nation's highest military appeals court in an important clash over when superiors bend military justice.
Neither Marine Pvt. Lawrence Hutchins III nor Navy Secretary Ray Mabus was present late Tuesday morning when the Court of Appeals for the Armed Forces considered the biggest unlawful-command-influence case in years. Hutchins is in a military prison, serving an 11-year sentence. Mabus was busy running the $150 billion-a-year Department of the Navy.
Their respective advocates, though, verbally clashed before a five-member court whose judges sounded somewhat sympathetic to Hutchins but also divided over what military-justice rules may apply to a civilian such as Mabus.
"This case," said Hutchins' attorney, Marine Corps Reserves Maj. S. Babu Kaza, "has been made radioactive by the secretary of the Navy."
In response, Marine Corps Maj. Paul M. Ervasti retorted that Mabus was "merely expressing an opinion" and "had no impact" when he weighed in on Hutchins' case several years ago. After Hutchins was convicted of killing an unarmed Iraqi, Mabus publicly rejected the notion of clemency, even though the Navy's clemency board hadn't yet acted.
The nearly hourlong oral argument Tuesday, closely watched by Hutchins' father and brother, was apparently the first unlawful-command-influence case during the protracted Iraq or Afghanistan wars to reach the nation's highest military appeals court. The overall problem, though, has long troubled military justice.
"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."
Appellate courts are wary of both "actual" and "apparent" command influence, either of which may taint public perceptions of military justice. Hutchins' attorneys say he was victimized by both types when Mabus opined on the case. The government denies it, and argues in any event that a civilian service secretary isn't covered by the Uniform Code of Military Justice's admonitions against command influence.
"Shouldn't we as judges be very, very chary of getting into the public statements of responsible civilian officials?" asked Judge Scott W. Stucky, a Kansas native. "Shouldn't we be very careful?"
One of Stucky's colleagues, Senior Judge Andrew S. Effron, countered that a prior military case concluded that the Navy secretary could unduly influence a military trial. Under the rules, if the defense can show some evidence of unlawful command influence, the burden shifts to the prosecution to prove otherwise.
A third-generation Marine, Hutchins was serving in Iraq with Kilo Company of the 3rd Battalion, 5th Marine Regiment, in 2006. After a disputed series of events, 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 Hamdania.
Busted from sergeant to private after his conviction, Hutchins is at Naval Consolidated Brig Miramar, north of San Diego. He is scheduled for release in 2015. Other Marines and a Navy corpsman pleaded guilty or were convicted of lesser charges.
They include onetime Manteca, Calif., resident Marshall L. Magincalda Jr. and Washington state natives Robert B. Pennington of Mukilteo and Jerry Shumate Jr. of Matlock.
In November 2009, while Hutchins was seeking clemency, Mabus publicly called the Marines' actions "premeditated" and said Hutchins shouldn't receive further clemency. Two months later, the clemency board rejected Hutchins' request for leniency. Mabus also ordered the dismissal of three other Marines and a Navy corpsman who had served with Hutchins, prior to the clemency board ruling on Hutchins' case.
"None of their actions lived up to the core values of the Marine Corps and the Navy," Mabus declared at the time.
When a lower court reversed Hutchins' conviction, Mabus' chief legal adviser - against his own staff's advice - recommended that the case be pursued. The conviction was later reinstated.
Hutchins also is challenging the military's decision to hold him incommunicado for seven days without access to an attorney. Several judges sounded sympathetic to his claims, with Stucky pressing the government's lawyer to concede that there was at least "an eentsy little bit of coercion" involved in Hutchins' treatment.
A court decision is expected sometime next year.