Navy SEALs, Sergeant Hutchins Attainder Courts-martial updates

NAVY SEALS Second Class Petty Officer Matthew McCabe, Second Class Petty Officer Johnathan Keefe, & First Class Petty Officer Julio Huertas, Jr.

“Charging the Navy SEALS sends the wrong message to both our troops and to the terrorists. How can we ask our bravest, most elite troops to carry out dangerous missions for our sake, and then have our own government charge them with crimes and threaten to punish them for doing their jobs? How can we expect them to do their jobs with the threat of court-martial over their heads?” asked Gonzalez.

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Marine Sergeant Lawrence Gordon Hutchins, III

Monday, 15 March 2010 full-board disciplinary officer hearing set for Marine Sergeant Lawrence Gordon Hutchins, III.

Defense JAG, Marine Captain Kaza reports:

“En Banc” just means that the entire Navy-Marine Corps Court of Criminal Appeals will sit in judgment of this case. There are roughly 12 judges assigned to the Court. Normally, an appeal will only be considered by a panel of 3 judges. But for cases that are deemed significantly important, they will sit “En Banc,” which means all of them will consider it. From my recollection, this Court only considers cases “en banc” roughly 2-3 times per year, out of the hundreds of cases they consider. This does not necessarily mean they are leaning toward the prosecution or defense, it just means that they consider the legal issues raised by Sgt Hutchins’ appeal to be very important.

The hearing on March 15 is an “oral argument.” That is where counsel for both sides of an appeal have the opportunity to address the appellate judges regarding technical points of law. As this case is being considered “En Banc” all of the judges assigned to the Court will be present for the argument. The judges will usually ask several questions, to help flesh out their position on a legal issue. It is very different from a trial, as it is not as much about emotion or rhetorical skill (although that can be important), as it is about knowledge of case precedents and how they should or shouldn’t apply to the facts of the case. The oral argument is more of a technical tool for the judges to help them analyze a case than it is a “closing argument” which will convince them whether to reverse or affirm a conviction.

I wouldn’t expect them to issue their decision for at least another month after that, if not longer.

If we lose the appeal before the Navy-Marine Corps Court of Criminal Appeals (which is statistically likely), then we can appeal to the highest military court, the Court of Appeals for the Armed Forces. That Court is made up of 5 civilian judges, appointed by the President for terms of 15 years. After that is a potential appeal to the U.S. Supreme Court.

Former Marine Judge Advocate, Marines, Brigadier General David Brahms adds this:

It is a big deal for the [Navy/Marine Corps Military Disciplinary Review Board] as a whole (all twelve members) to agree to hear the case as in Larry’s situarion. It is rare. In most cases a [smaller panel] of the whole [Board] hears the case. The EN BANC decision means there is a big issue and the [Board] is convinced it required special attention. I caution it is not evidence [Sergeant Hutchins] will win.