UNITED STATES, Appellee 

v. 

Lawrence G. HUTCHINS III, Sergeant 

U.S. Marine Corps, Appellant 

No. 12-0408 

Crim. App. No. 200800393 

United States Court of Appeals for the Armed Forces 

Argued November 13, 2012 

Decided June 26, 2013 

ERDMANN, J., delivered the opinion of the court, in which 

STUCKY, J., and EFFRON, S.J., joined. RYAN, J., filed a 

separate opinion concurring in the result. BAKER, C.J., filed a 

separate dissenting opinion. 

Counsel 

For Appellant: Major S. Babu Kaza, USMC (argued). 

For Appellee: Major Paul M. Ervasti, USMC (argued); Colonel 

Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief); 

Major William C. Kirby, USMC. 

Military Judge: Jeffrey G. Meeks 

This opinion is subject to revision before final publication. 
United States v. Hutchins, No. 12-0408/MC 

2

Judge ERDMANN delivered the opinion of the court. 

 Contrary to his pleas, Sergeant Lawrence G. Hutchins III 

was convicted by members at a general court-martial of making a 

false official statement, unpremeditated murder, larceny, and 

conspiracy to commit larceny, false official statements, murder, 

and obstruction of justice in violation of Articles 107, 118, 

121, and 81, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§§ 907, 918, 921, 881 (2006).1

 The members sentenced Hutchins to 

reduction to E-1, confinement for fifteen years, dishonorable 

discharge, and a reprimand. The convening authority approved a 

sentence of reduction to E-1, confinement for eleven years, and 

a dishonorable discharge. 

The United States Navy-Marine Corps Court of Criminal 

Appeals (CCA) concluded that the military judge had improperly 

severed the attorney-client relationship with one of Hutchins’s 

defense counsel, set aside the findings and sentence, and 

authorized a rehearing. United States v. Hutchins, 68 M.J. 623, 

624, 631 (N-M. Ct. Crim. App. 2010). The Judge Advocate General 

of the Navy certified the issue involving the termination of the 

attorney-client relationship to this court pursuant to Article 

 

1

 Hutchins was initially charged with one specification of 

conspiracy to commit larceny, housebreaking, kidnapping, false 

official statements, murder, and obstruction of justice, two 

specifications of making false official statements, one 

specification each of premeditated murder, larceny, 

housebreaking, and kidnapping, two specifications of obstruction 

of justice, and four specifications of assault. 
United States v. Hutchins, No. 12-0408/MC 

3

67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2006). We reversed the 

CCA decision holding that while the attorney-client relationship 

had been improperly severed, Hutchins was not prejudiced. 

United States v. Hutchins, 69 M.J. 282, 293 (C.A.A.F. 2011). We 

returned the record of trial to the Judge Advocate General of 

the Navy for remand to the CCA for further review pursuant to 

Article 66(c), UCMJ. Id. Upon further review, the CCA affirmed 

the findings and the sentence as approved by the convening 

authority. United States v. Hutchins, No. NMCCA 200800393, 2012 

CCA LEXIS 93, at *32, 2012 WL 933067, at *12 (N-M. Ct. Crim. 

App. Mar. 20, 2012) (unpublished). 

We granted review to determine whether Hutchins’s posttrial rights were influenced by unlawful command influence and 

whether the military judge erred when he denied the defense 

motion to suppress Hutchins’s statement made to the Naval 

Criminal Investigative Service (NCIS) after having invoked his 

right to counsel.2

 We hold that the NCIS request to Hutchins for 

 

2

 We granted review of the following issues: 

I. Whether the findings and sentence must be 

dismissed with prejudice where unlawful command 

influence from the Secretary of the Navy has 

undermined substantial post-trial rights of the 

Appellant. 

II. The Appellant was interrogated by NCIS concerning 

his involvement in the alleged crimes, and 

terminated the interview by invoking his right to 

counsel. Appellant was thereafter held 

incommunicado and placed in solitary confinement 
United States v. Hutchins, No. 12-0408/MC 

4

his consent to search his belongings reinitiated communication 

with Hutchins in violation of his Fifth Amendment rights as 

interpreted by the Supreme Court in Edwards v. Arizona, 451 U.S. 

477 (1981), and Oregon v. Bradshaw, 462 U.S. 1039 (1983). We 

therefore reverse the decision of the CCA, set aside the 

findings and the sentence, and return the case to the Judge 

Advocate General of the Navy.3

Factual Background

 The charges against Hutchins arose from an incident that 

occurred in April 2006 while Hutchins was a squad leader in Iraq 

and his unit was conducting counterinsurgency operations. The 

CCA summarized the facts of the offenses as follows: 

 

where he was denied the ability to communicate 

with a lawyer or any other source of assistance. 

Appellant was held under these conditions for 7 

days, whereupon NCIS re-approached Appellant and 

communicated with him regarding their ongoing 

investigation. In response, Appellant waived his 

previously invoked right to counsel and 

subsequently provided NCIS a sworn statement 

concerning the alleged crimes. Did the military 

judge err when he denied the defense motion to 

suppress the Appellant’s statement? See Edwards 

v. Arizona, 451 U.S. 477 (1981) and United States 

v. Brabant, 29 M.J. 259 (C.M.A. 1989). 

United States v. Hutchins, 71 M.J. 344 (C.A.A.F. 2012) 

(order granting review). 

3

 Issue I addresses matters occurring during the post-trial 

appellate and secretarial review of the case. Issue II 

addresses claims of error at trial. In light of our resolution 

of Issue II -- that the military judge committed prejudicial 

error at trial in failing to suppress Hutchins’s statement -- 

Issue I has no bearing on our decision. Accordingly, we do not 

address granted Issue I. Hutchins, 71 M.J. 344. 
United States v. Hutchins, No. 12-0408/MC 

5

The appellant was assigned as squad leader for 1st 

Squad, 2nd Platoon, Kilo Company, 3rd Battalion, 5th 

Marines, assigned to Task Force Chromite, conducting 

counter-insurgency operations in the Hamdaniyah area 

of Iraq in April 2006. In the evening hours of 25 

April 2006, the appellant led a combat patrol to 

conduct a deliberate ambush aimed at interdicting 

insurgent emplacement of improvised explosive devices 

(IEDs). The court-martial received testimony from 

several members of the squad that indicated the 

intended ambush mission morphed into a conspiracy to 

deliberately capture and kill a high value individual 

(HVI), believed to be a leader of the insurgency. The 

witnesses gave varying testimony as to the depth of 

their understanding of alternative targets, such as 

family members of the HVI or another random militaryaged Iraqi male. 

Considerable effort and preparation went into the 

execution of this conspiracy. Tasks were accomplished 

by various Marines and their corpsman, including the 

theft of a shovel and AK-47 from an Iraqi dwelling to 

be used as props to manufacture a scene where it 

appeared that an armed insurgent was digging to 

emplace an IED. Some squad members advanced to the 

ambush site while others captured an unknown Iraqi 

man, bound and gagged him, and brought him to the 

would-be IED emplacement. 

The stage set, the squad informed higher headquarters 

by radio that they had come upon an insurgent planting 

an IED and received approval to engage. The squad 

opened fire, mortally wounding the man. The appellant 

approached the victim and fired multiple rifle rounds 

into the man’s face at point blank range. 

The scene was then manipulated to appear consistent 

with the insurgent/IED story. The squad removed the 

bindings from the victim’s hands and feet and 

positioned the victim’s body with the shovel and AK-47 

rifle they had stolen from local Iraqis. To simulate 

that the victim fired on the squad, the Marines fired 

the AK-47 rifle into the air and collected the 

discharged casings. When questioned about the action, 

the appellant, like other members of the squad, made 

false official statements, describing the situation as 

a legitimate ambush and a “good shoot.” The death was 

brought to the appellant’s battalion commander’s 
United States v. Hutchins, No. 12-0408/MC 

6

attention by a local sheikh and the ensuing 

investigation led to the case before us. 

2012 CCA LEXIS 93, at *4-*6, 2012 WL 933067 at *2 (paragraph 

formatting added). 

On May 11, 2006, NCIS initiated an interrogation of 

Hutchins after advising him of his rights in accordance with 

Miranda v. Arizona, 384 U.S. 436 (1966), and Article 31(b), 

UCMJ, 10 U.S.C. § 831(b) (2006). Following Hutchins’s 

invocation of his right to an attorney, NCIS properly terminated 

the interrogation. At that point Hutchins was confined to a 

trailer under guard where he was held essentially in solitary 

confinement and was not allowed to use a phone or to otherwise 

contact an attorney. The Government conceded that these 

conditions were restriction tantamount to confinement. However, 

despite the requirements of Military Rule of Evidence (M.R.E.) 

305(d)(2) and Rule for Courts-Martial (R.C.M.) 305(f), the 

Government made no effort to secure an attorney for Hutchins 

during this period. 

After a week of confinement under these conditions, on May 

18, 2006, the same NCIS investigator who had interrogated 

Hutchins on May 11 entered his trailer in the late evening and 

asked for permission to search his personal belongings. The 

investigator provided Hutchins with a Permissive Authorization 

for Search and Seizure form which reminded him that he was still 

under investigation for conspiracy, murder, assault, and 
United States v. Hutchins, No. 12-0408/MC 

7

kidnapping. While reading this form, Hutchins asked if the door 

was still open to give his side of the story. Hutchins 

consented to the search and signed the form. 

The investigator informed Hutchins that he could talk to 

them but not that night.4 The next morning Hutchins was taken to 

NCIS where he was readvised of his Article 31 rights. Hutchins 

waived his rights, was interrogated, and subsequently provided a 

detailed written confession. 

Discussion

Introduction: 

The Government argues that this case is governed by the 

holding in United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 

1992), that “[a] request for consent to search does not infringe 

upon Article 31 or Fifth Amendment safeguards against selfincrimination because such requests are not interrogations and 

the consent given is ordinarily not a statement.” We do not 

take issue with that basic principle and agree that the NCIS 

request to search Hutchins’s personal belongings on May 18 was 

not an interrogation. The principle set forth in Frazier, 

however, does not end our inquiry. Once Hutchins requested an 

attorney, under Edwards he could not be further interrogated 

unless: (1) counsel had been made available; or, (2) Hutchins 

reinitiated further “communication, exchanges, or 

 

4

 The investigator testified that he was exhausted after a long 

day and wanted to be fresh the next morning. 
United States v. Hutchins, No. 12-0408/MC 

8

conversations.” Edwards, 451 U.S. at 484-85. As no attorney 

was made available to Hutchins, the Edwards inquiry in this case 

centers on whether, under the circumstances of this case, it was 

the Government or Hutchins that reinitiated further 

communication under Edwards and Bradshaw. 

Edwards and Bradshaw -- Reinitiation of the Communication: 

Since the Supreme Court’s decision in Edwards in 1981, it 

has been clear that: 

[A]n accused . . . having expressed his desire to deal 

with the police only through counsel, is not subject 

to further interrogation by the authorities until 

counsel has been made available to him, unless the 

accused himself initiates further communication, 

exchanges, or conversations with the police. 

Edwards, 451 U.S. at 484-85 (emphasis added). 

There is no disagreement between the parties that Edwards

applies to the circumstances of this case. However, the parties 

differ as to whether NCIS or Hutchins initiated further 

“communication, exchanges, or conversations.” Hutchins argues 

that the request for consent to search was an initiation of 

further communication by NCIS in violation of Edwards because it 

was directly related to the criminal investigation and was not 

merely incidental to the custodial relationship, citing 

Bradshaw, 462 U.S. at 1044. The Government responds that, under 

Frazier, the request for consent to search is not an 

interrogation and therefore such a request did not initiate 

further “interrogation” as proscribed by Edwards. 
United States v. Hutchins, No. 12-0408/MC 

9

The fundamental purpose of the judicially crafted rule in 

Edwards is to “[p]reserv[e] the integrity of an accused’s choice 

to communicate with police only through counsel.” Patterson v. 

Illinois, 487 U.S. 285, 291 (1988). The need for such a rule is 

to provide added protection against the coercive pressures of 

continuous custody after an individual has invoked his right to 

counsel, because he is “cut off from his normal life and 

companions, thrust into and isolated in an unfamiliar, policedominated atmosphere, where his captors appear to control his 

fate.”5 Maryland v. Shatzer, 559 U.S. 98, 106 (2010) (citations 

omitted) (internal quotation marks and brackets omitted). 

The Court in Oregon v. Bradshaw stated: 

[The test in Edwards] was in effect a prophylactic 

rule, designed to protect an accused in police custody 

from being badgered by police officers . . . [and we] 

restated the requirement in Wyrick v. Fields, 459 U.S. 

42, 46 (1982) (per curiam), to be that before a 

suspect in custody can be subjected to further 

interrogation after he requests an attorney there must 

 

5

 “Fidelity to the doctrine announced in Miranda requires that it 

be enforced strictly, but only in those types of situations in 

which the concerns that powered the decision are implicated.” 

Berkemer v. McCarty, 468 U.S. 420, 437 (1984). It is hard to 

imagine a situation where this would be more of a concern than 

in the present case, i.e., while deployed to a foreign country 

in a combat environment Hutchins was held in essentially 

solitary confinement in a trailer for seven days after invoking 

his right to counsel; despite his request for counsel, no 

attorney was provided during this period and no explanation was 

provided to Hutchins as to why; he was held incommunicado (other 

than a chance conversation with a chaplain for three or four 

minutes); and he was not allowed to use a phone, the mail 

system, or other means of communication to contact an attorney, 

family, friends, or anyone else. 
United States v. Hutchins, No. 12-0408/MC 

10

be a showing that the “suspect himself initiates 

dialogue with the authorities.” 

Bradshaw, 462 U.S. at 1044. 

Not all communications initiated by an accused or law 

enforcement will trigger the protections under Edwards.6 The 

Court in Bradshaw went on to distinguish between inquiries or 

statements by either a police officer or a defendant that 

represented a desire to open a more “generalized discussion 

relating directly or indirectly to the investigation” and those 

“inquiries or statements, by either an accused or a police 

officer, relating to routine incidents of the custodial 

relationship.” Id. at 1045. The former circumstance 

constitutes a reinitiation of communication while the latter 

circumstance does not. The Edwards rule does not merely 

prohibit further interrogation without the benefit of counsel, 

it prohibits further “communication, exchanges, or 

conversations” that may (and in this case, did) lead to further 

interrogation. 451 U.S. at 485. Under Bradshaw, the issue 

before this court is whether the NCIS agent opened a more 

“generalized discussion relating directly or indirectly to the 

 

6

 See Bradshaw, 462 U.S. at 1045 (“While we doubt that it would 

be desirable to build a superstructure of legal refinements 

around the word ‘initiate’ in this context, there are 

undoubtedly situations where a bare inquiry by either a 

defendant or by a police officer should not be held to 

‘initiate’ any conversation or dialogue.”). 
United States v. Hutchins, No. 12-0408/MC 

11

investigation” or whether his inquiry related to “routine 

incidents of the custodial relationship.” 462 U.S. at 1045. 

The NCIS investigator was forthright in his testimony that 

he initiated contact with Hutchins on May 18 to further the 

investigation.7 The investigator testified that he requested 

permission to search Hutchins’s personal belongings that he had 

brought from Abu Ghraib to look for any media that could contain 

photographs. In connection with this request Hutchins was 

provided a permissive search authorization to sign. 

Importantly, the search authorization again reminded Hutchins 

that he was under investigation for conspiracy, murder, assault, 

and kidnapping. Its purpose was to seek Hutchins’s cooperation 

in the ongoing investigation by providing his consent to a 

search of his belongings. The investigator testified that it 

was while Hutchins was reading that form that he asked if there 

was still an opportunity to talk to NCIS and give his side of 

the story. This request for consent to search by the NCIS 

initiated a generalized discussion which related directly to the 

 

7

 [Defense Counsel]: Now, getting to your purpose for coming 

back to Sergeant Hutchins, you went back to 

Sergeant Hutchins to further your 

investigation, didn’t you? 

[Investigator]: Yes 
United States v. Hutchins, No. 12-0408/MC 

12

ongoing investigation as contrasted to a bare inquiry about 

routine incidents of Hutchins’s custody.8 

Frazier -- A Request to Search is Not an Interrogation: 

The Government’s reliance on the holding in Frazier is 

misplaced in this situation. Frazier stands for the proposition 

that a request for consent to search does not “infringe upon 

Article 31 or Fifth Amendment safeguards against selfincrimination because such requests are not interrogations and 

the consent given is ordinarily not a statement.” Frazier, 34 

M.J. at 137. Frazier, however, did not involve or address the 

reinitiation of communications by law enforcement after an 

accused has invoked his right to counsel and cannot be held to 

modify or nullify the protections established by Edwards and 

Bradshaw.9 

 

8

 See Bradshaw, 462 U.S. at 1045 (“There are some inquiries, such 

as a request for a drink of water or a request to use a 

telephone . . . relating to routine incidents of the custodial 

relationship, [that] will not generally ‘initiate’ a 

conversation in the sense in which that word was used in 

Edwards.”); see also United States v. Applewhite, 23 M.J. 196, 

199 (C.M.A. 1987) (request to take a polygraph examination 

initiated by investigator after an invocation of right to 

counsel was “in blatant disregard of Miranda and Edwards”). 

9

 As noted, generally a request for consent to search does not 

itself implicate the Fifth Amendment. 34 M.J. at 135. This is 

because a request for consent to search is not considered 

“interrogation.” Id.; see also M.R.E. 305(b)(2) (defining 

“interrogation” as including “any formal or informal questioning 

in which an incriminating response either is sought or is a 

reasonable consequence of such questioning”); Rhode Island v. 

Innis, 446 U.S. 291, 301 (1980) (“‘[I]nterrogation’ under 

Miranda refers not only to express questioning, but also to any 

words or actions on the part of police (other than those 
United States v. Hutchins, No. 12-0408/MC 

13

Conclusion: 

Hutchins’s subsequent May 19 statement was a direct result 

of the reinitiation of communication by NCIS.10 Accordingly, 

under the circumstances of this case, it was error for the 

military judge to admit the statement made by Hutchins on May 

19, 2006.11 For an error in admitting the statement to be 

harmless beyond a reasonable doubt, this court must be convinced 

that there was no reasonable likelihood that its erroneous 

admission contributed to the verdict. See United States v.

Mitchell, 51 M.J. 234, 240 (C.A.A.F. 1999). The Government made 

use of Hutchins’s detailed statement in its opening statement, 

closing argument, and rebuttal argument and as evidence to 

 

normally attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating 

response.”). To be clear, our decision in this case does not 

affect this basic proposition. However, the issue we address 

today is not whether the request for consent to search was an 

“interrogation,” but rather was it a reinitiation of “further 

communication” prohibited by Edwards and Bradshaw. 10 Although a request for consent to search is not in itself an 

interrogation under Frazier, we do not agree with the dissent’s 

suggestion that such a request has no bearing on the separate 

legal question as to whether, under all the surrounding 

circumstances, the Government reinitiated a communication under 

Edwards and Bradshaw. United States v. Hutchins, __ M.J. __, __ 

(6-10) (C.A.A.F. 2013) (Baker, C.J., dissenting). In this case, 

for example, the communication was more than a simple request 

for consent to search, but instead included an implicit 

accusatory statement. 

11 Because the Government reinitiated communication with Hutchins 

concerning the criminal investigation, it is unnecessary to 

resolve whether Hutchins knowingly and intelligently waived the 

prior invocation of his right to counsel before the 

interrogation that resulted in his statement on May 19, 2006. 

See Edwards, 451 U.S. at 482. 
United States v. Hutchins, No. 12-0408/MC 

14

corroborate other evidence and to attack the opinion of the 

defense expert witness. Therefore, notwithstanding the other 

evidence of Hutchins’s guilt, there is a reasonable likelihood 

that the statement contributed to the verdict. 

Decision

The request by NCIS to Hutchins for his consent to search 

his belongings reinitiated communication with Hutchins in 

violation of his Fifth Amendment rights as interpreted by the 

Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981), and 

Oregon v. Bradshaw, 462 U.S. 1039 (1983). Accordingly, the 

decision of the United States Navy-Marine Corps Court of 

Criminal Appeals is reversed. The findings and the sentence are 

set aside. The record is returned to the Judge Advocate General 

of the Navy for referral to an appropriate convening authority 

who may authorize a rehearing. 

 
United States v. Hutchins, No. 12-0408/MC 

RYAN, Judge (concurring in the result): 

This case presents the very close question whether, 

under the circumstances, the Naval Criminal Investigative 

Service’s (NCIS) request for consent to search Appellant’s 

personal belongings constituted a reinitiation of 

interrogation under Edwards v. Arizona, 451 U.S. 477 

(1981), and, therefore, a violation of Appellant’s Fifth 

Amendment right to not incriminate himself. It is clear 

that a mere request for a permissive search authorization 

is not itself an interrogation, see United States v. 

Frazier, 34 M.J. 135, 137 (C.M.A. 1992) (“A request for a 

consent to search does not infringe upon Article 31 or 

Fifth Amendment safeguards against self-incrimination 

because such requests are not interrogations and the 

consent given is ordinarily not a statement.”), and I do 

not read the majority to suggest that it is. 

Recognizing, however, that a mere request for a search 

authorization is not an interrogation does not answer the 

distinct question whether, under the unique circumstances 

of this case, the reinitiation of contact by NCIS for an 

otherwise permissible purpose was “reasonably likely to 

elicit an incriminating response from the suspect,” and 

thus an interrogation nonetheless. Rhode Island v. Innis, 

446 U.S. 291, 301 (1980) (footnote omitted). In my view, 
United States v. Hutchins, No. 12-0408/MC 

2

the admissibility of Appellant’s confession turns on that 

question, and no cases with like facts clearly dictate the 

answer. 

In Edwards v. Arizona, the Supreme Court held that 

“when an accused has invoked his right to have counsel 

present during custodial interrogation, a valid waiver of 

that right cannot be established by showing only that he 

responded to further police-initiated custodial 

interrogation even if he has been advised of his rights.” 

451 U.S. at 484. The Court further held that when an 

accused invokes his right to counsel, he is “not subject to 

further interrogation . . . until counsel has been made 

available to him, unless the accused himself initiates 

further communication, exchanges, or conversations with the 

police.” Id. at 484-85. Statements made after a suspect 

invokes his right to counsel and in response to further 

custodial interrogation “d[o] not amount to a valid waiver 

and hence [are] inadmissible.” Id. at 487. 

This bright-line rule serves as a “second layer of 

prophylaxis” safeguarding “a suspect’s right to have 

counsel present at a subsequent interrogation if he had 

previously requested counsel,” Maryland v. Shatzer, 130 S. 

Ct. 1213, 1219 (2010) (citation and internal quotation 

marks omitted), and is separate and distinct from the 
United States v. Hutchins, No. 12-0408/MC 

3

question whether a suspect’s waiver was otherwise “knowing, 

intelligent, and voluntary under the ‘high standar[d] of 

proof . . . [set forth in] Johnson v. Zerbst, 304 U.S. 458 

(1938),’” Shatzer, 130 S. Ct. at 1219 (alterations in 

original) (quoting Miranda v. Arizona, 384 U.S. 436, 475 

(1966)); see also Oregon v. Bradshaw, 462 U.S. 1039, 1044-

45 (1983) (plurality opinion); id. at 1053 (Marshall, J., 

with whom Brennan, J., Blackmun, J., and Stevens, J., 

joined, dissenting) (agreeing with the majority on this 

point of law). My agreement with Chief Judge Baker, then, 

that Appellant’s waiver was not involuntary under “Zerbst’s 

traditional standard of waiver,” Shatzer, 130 S. Ct. at 

1219, does not end the inquiry. 

Edwards does not protect against all reinitiations of 

contact with a suspect held in continuous custody who has 

invoked his right to counsel –- only those that the 

government should reasonably expect to result in an 

incriminating statement. See Innis, 446 U.S. at 301. We 

view the latter class of reinitiations with a jaundiced eye 

and compare it to the psychological ploys that necessitated 

the protections first instituted in Miranda. See Miranda, 

384 U.S. at 448-57. Whether NCIS’ reinitiation of contact 

with Appellant should be deemed a reinitiation of 

interrogation in contravention of Edwards turns on whether 
United States v. Hutchins, No. 12-0408/MC 

4

NCIS should have known that its actions were “reasonably 

likely to elicit an incriminating response.” Innis, 446 

U.S. at 301; see also United States v. Brabant, 29 M.J. 

259, 262-63 (C.A.A.F. 1989). 

In making this determination, we must consider, among 

other things, that: (1) after Appellant invoked his right 

to counsel during his initial interrogation, he was held in 

sequestration in a war zone for seven days; (2) during this 

period of solitary confinement, Appellant was neither 

provided an attorney nor permitted to contact one; (3) 

Appellant was not permitted to speak with anyone other than 

the chaplain, use any facilities other than the head and 

shower, or have access to phones, computers, or other 

methods of communication; (4) the Government’s explanation 

as to why it did not provide Appellant with an attorney or 

the ability to even contact one during this seven-day 

period of sequestration was that “[it] is not required,” 

Audio recording of oral argument at 29:18, United States v. 

Hutchins, __ M.J.__ (C.A.A.F. Nov. 13, 2012) (No. 12-0408) 

http://www.armfor.uscourts.gov/newcaaf/calendar/2012-

11.htm#13; (5) after Appellant was held in sequestration 

for seven days, the NCIS agent who had conducted 

Appellant’s initial interrogation reinitiated contact with 

him to obtain a permissive search authorization; and (6) 
United States v. Hutchins, No. 12-0408/MC 

5

Appellant did not make a statement until the day following 

NCIS’ request for consent to search and after cleansing 

warnings were provided. 

While (6) is strong evidence that Appellant’s 

confession was not involuntary under Zerbst, it does not 

answer the altogether different question whether, under the 

circumstances, NCIS should have known that its reinitiation 

of contact with Appellant, made for any purpose, was 

reasonably likely to elicit an incriminating statement in 

violation of Edwards. The military judge did not consider 

this question, which is different from whether law 

enforcement was engaged in intentional subterfuge. 

After considering the facts outlined above, and that 

the prosecution has the burden to “demonstrate by a 

preponderance of the evidence that [Appellant] initiated 

the communication leading to the waiver,” Military Rule of 

Evidence 305(g)(2)(B)(i), I resolve this close question in 

Appellant’s favor. 

Moreover, while I agree with much of Chief Judge 

Baker’s analysis of whether the Secretary of the Navy’s 

(the Secretary) comments resulted in unlawful command 

influence, I disagree with two aspects of his discussion. 

First, in my view, Chief Judge Baker blurs the 

distinction between the doctrines of actual and apparent 
United States v. Hutchins, No. 12-0408/MC 

6

unlawful command influence by suggesting that the Secretary 

of the Navy’s comments did not constitute unlawful command 

influence either because (1) the Secretary did not intend 

to influence the outcome of Appellant’s proceedings, or (2) 

his comments did not actually affect any judicial or 

reviewing authority. See Hutchins, __ M.J. at __ (28, 31-

34, 41) (Baker, C.J., dissenting). Of course, if a speaker 

intends to influence a judicial or reviewing authority and 

that speaker actually influences that authority, the 

speaker will have likely committed actual unlawful command 

influence. See United States v. Lewis, 63 M.J. 405, 414 

(C.A.A.F. 2006) (finding actual unlawful command influence 

where the Government’s “orchestrated effort to unseat [the 

military judge] exceeded any legitimate exercise of [its] 

right” to challenge her). In my view, apparent unlawful 

command influence may be shown even without proof that the 

speaker intended to influence a particular authority or 

that any authority was actually influenced. The focus of 

apparent unlawful command influence is whether a 

reasonable, disinterested member of the public, fully 

informed of all the facts, would perceive the military 

justice system as fair. Id. at 415. 

Second, Article 37, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 837 (2006), which prohibits unlawful 
United States v. Hutchins, No. 12-0408/MC 

7

command influence, has been in existence since the UCMJ was 

established in 1950, see Act of May 5, 1950, Pub. L. No. 

81-506, ch. 169, 64 Stat. 107, 120 (Article 37), and there 

has been no showing whatsoever that its prohibition against 

unlawful command influence trammels upon the statutory or 

constitutional duties of senior civilian leaders such as 

the Secretary, or that the two are incompatible in any way. 

I thus disagree that there is any justification for the 

civilian head of the Department of the Navy’s inflammatory 

comments on a case where neither appellate review nor the 

clemency process are complete. But see Hutchins, __ M.J. 

at __ (29) (Baker, C.J., dissenting) (“Senior officials 

dealing with national security questions that also 

implicate military justice concerns must 

contemplate . . . the impact on foreign relations and 

national security of not commenting at all.”). 

Appellant was convicted of unpremeditated murder. In 

November 2009, despite both ongoing appellate review and 

the annual Naval Clemency & Parole Board (NC&PB) review 

process, the Secretary made widely disseminated, public 

comments, which left no doubt about his strong view that 

Appellant had already received substantial clemency from 

the convening authority and would receive no further 

clemency. Moreover, despite the fact that Appellant was 
United States v. Hutchins, No. 12-0408/MC 

8

acquitted of premeditated murder, the Secretary 

emphatically stated that Appellant had committed that 

crime. As quoted in several military publications, he 

stated that the murder was: 

[S]o completely premeditated, that it was not in 

the heat of battle, that not only was the action 

planned but the cover-up was planned, and that 

they picked somebody at random, just because he 

happened to be in a house that was convenient. 

He was murdered. 

The Secretary further stated that (1) Appellant had not 

acted “‘in the fog of war,’” (2) “‘[the] sentence [was] 

commensurate with the crime,’” and (3) Appellant had been 

granted “‘substantial clemency already,’” referring to the 

convening authority’s approval of only eleven of the 

fifteen years confinement provided for in the adjudged 

sentence. 

Following these events, and as relevant to the 

unlawful command influence claim before this Court, the 

NC&PB, which had previously recommended that Appellant 

receive a six-year reduction in his sentence, recommended 

that he receive no clemency or parole at all. Whether the 

Secretary’s comments actually caused the NC&PB’s change of 

heart is irrelevant in assessing apparent unlawful command 

influence, as “the mere appearance of unlawful command 

influence may be ‘as devastating to the military justice 
United States v. Hutchins, No. 12-0408/MC 

9

system as the actual manipulation.’” United States v. 

Ashby, 68 M.J. 108, 128 (C.A.A.F. 2009) (quoting United 

States v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000)). 

In Appellant’s case, “a reasonable member of the 

public,” Lewis, 63 M.J. at 415, apprised of the Secretary’s 

unequivocal, publicized position that Appellant deserved no 

further clemency, would “harbor a significant doubt about 

the fairness,” id., of Appellant’s annual NC&PB clemency 

review. This doubt would be bolstered by (1) the NC&PB’s 

dramatic change following the Secretary’s comments that 

Appellant receive no clemency or parole; (2) the 

subordinate status of all NC&PB members to the Secretary, 

see Dep’t of the Navy, Sec’y of the Navy Instruction, Dep’t 

of the Navy Clemency and Parole Systems pt. I, § 111, at I2 (June 12, 2003) [hereinafter SECNAVINST 5815.3J]; and (3) 

the fact that any NC&PB clemency or parole recommendation 

would have to be approved by the Assistant Secretary of the 

Navy M&RA, see id. pt. II, § 205, at II-3, who was 

presumably aware of the Secretary’s position on this 

matter. That Appellant ultimately received 251 days of 

clemency –- a period commensurate with the duration of his 

release following United States v. Hutchins, 68 M.J. 623 

(N-M. Ct. Crim. App. 2010) -- is far from curative of the 

apparent unlawful command influence when viewed in light of 
United States v. Hutchins, No. 12-0408/MC 

10

the NC&PB’s initial recommendation of six years of 

clemency. 

No member of the public, aware of the remarks made and 

the change in clemency recommendation that occurred, could 

fail to harbor grave concerns that the change in the 

NC&PB’s clemency recommendation was directly related to the 

Secretary’s intemperate remarks about Appellant, in a case 

where neither appellate review nor clemency proceedings had 

been completed. These concerns are not cured by the facts 

that (1) Appellant has no right to any clemency at all, (2) 

the Secretary need not feel impartial about Appellant’s 

actions, and (3) the Secretary has the ultimate authority 

to grant any or no clemency. Here, the Secretary’s brash 

public remarks resulted in the appearance of unlawful 

command influence. 

In my view, the Secretary’s disturbing and 

inappropriate comments created an “intolerable strain on 

public perception of the military justice system,” United

States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003) 

(citation and internal quotations marks omitted), with 

respect to the clemency proceedings. We are not, however, 

in a position to repair this damage because SECNAVINST 

5815.3J limits the NC&PB’s role in Appellant’s clemency 

process to one that merely advises the Secretary on a 
United States v. Hutchins, No. 12-0408/MC 

11

matter committed, by statute, to his discretion. 

SECNAVINST 5815.3J, pt. III, § 308(a)(6)(d)-(e), at III-6. 

Moreover, Ohio Adult Parole Authority v. Woodard, 523 U.S. 

272 (1998), represents a sharp limitation on this Court’s 

role in safeguarding clemency proceedings that “are not 

part of the trial -- or even of the adjudicatory process,” 

id. at 284. 

These reasons, however, provide a very different basis 

for declining to act in this case than either suggesting 

that such comments did not result in apparent unlawful 

command influence because the Secretary did not intend to 

or actually affect the proceedings or are otherwise 

justifiable. 

“‘[A] prime motivation for establishing [this Court] 

was to erect a further bulwark against impermissible 

command influence.’” United States v. Harvey, 64 M.J. 13, 

17 (C.A.A.F. 2006) (citation and footnote omitted). 

“Fulfilling this responsibility is fundamental to fostering 

public confidence in the actual and apparent fairness of 

our system of justice.” Id. We cannot decline to 

criticize the Secretary for making the remarks he made, and 

by implication lend our own judicial imprimatur to the 

civilian leadership’s making of such public statements 
United States v. Hutchins, No. 12-0408/MC 

12

about cases where neither appellate review nor the clemency 

process are complete. 
United States v. Hutchins, No. 12-0408/MC 

BAKER, Chief Judge (dissenting): 

INTRODUCTION 

I respectfully dissent for two reasons. First, I do not 

agree with the majority’s conclusion that the Naval Criminal 

Investigation Service (NCIS) agent’s request for a permissive 

search authorization constitutes reinitiation of communication 

in violation of Appellant’s Fifth Amendment rights. Appellant 

initiated communication with the NCIS agents, and his statement 

was both voluntary and the result of a knowing waiver of his 

right to counsel. Therefore, the military judge did not abuse 

his discretion in denying the motion to suppress the statement, 

and the statement was properly admitted into evidence. 

Second, by failing to address the allegations of unlawful 

command influence, the majority avoids a systemically important 

question and central aspect of the case, which warrants inquiry 

and consideration by this Court. This case raises matters of 

first impression involving the scope of Article 37, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. § 837 (2006), and the 

nature of a service secretary’s clemency process, as well as the 

general question of whether the prohibition against unlawful 

command influence bars policymakers from addressing matters of 

national and foreign policy importance where they also involve 

issues of military justice and executive clemency. While I 

would ultimately find that Appellant has not met his burden of 
United States v. Hutchins, No. 12-0408/MC 

2

raising “some evidence” of unlawful command influence, these 

matters deserve full and fair consideration. 

ADMISSIBILITY OF APPELLANT’S STATEMENT 

Background

On May 10, 2006, Appellant and the members of his squad 

were transferred to Fallujah for questioning as “suspects in a 

homicide.” Upon arrival, all members of his squad had their 

weapons confiscated and were not permitted to communicate with 

each other. Appellant and the other members were billeted in 

trailers referred to as “cans.” “The doors of the trailer rooms 

were locked, and the locks had to be opened with a key from both 

sides.” When outside the “cans,” an escort remained with them 

at all times. 

 On May 11, 2006, NCIS agents questioned Appellant at Camp 

Fallujah. The agents informed Appellant that he was suspected 

of the offenses for which he was subsequently charged. He was 

also properly advised of his rights. Appellant waived his 

rights and stated that the shooting was part of an ambush. When 

the agents confronted him with evidence indicative of a 

homicide, Appellant invoked his right to counsel. The agents 

terminated the interrogation and returned Appellant to custody. 

 For the next seven days, Appellant remained in the “can.” 

While Appellant spoke with the chaplain, he was not permitted to 

use morale, welfare, and recreation facilities, to have access 
United States v. Hutchins, No. 12-0408/MC 

3

to phones, computers, or mail, or to communicate with other 

members of the squad. Appellant was allowed to use the latrine 

and shower facilities. The military judge found that, during 

this time period, the Government “made no direct or indirect 

attempts to contact him . . . or to persuade him to reopen 

discussion.” Nor did the Government provide Appellant with 

counsel, as requested. 

 On May 18, 2006, NCIS agents approached Appellant to obtain 

permissive authorization to search his belongings, which he 

granted. The military judge made findings, based on his 

assessment of the witnesses’ testimony, that “the agents 

strictly restricted their contact with the accused to the 

request for permissive authorization for a search of his 

belongings” and “the government did not seek to discuss the case 

with the accused further.” As they searched, Appellant asked if 

“the door was still open to discuss his side of the story.” An 

agent reminded Appellant that he had exercised his right to 

counsel, and told Appellant that they did not have time to talk 

that night, which the military judge found “directly contradicts 

any allegation that this visit to his can was a subterfuge to 

reinitiate contact.” The agent told Appellant that he was not 

sure what time the following day Appellant would be sent back to 

the United States, but said that they would speak with him if 

there was time. 
United States v. Hutchins, No. 12-0408/MC 

4

 The next day, May 19, the NCIS agents again informed 

Appellant of his rights. Appellant “expressly waived those 

rights and indicated a continued desire to reinitiate contact 

with the government without the benefit of counsel.” Appellant 

gave a lengthy, detailed statement. 

Discussion

 This Court reviews a military judge’s denial of a motion to 

suppress a confession for an abuse of discretion. A military 

judge’s findings of fact are reviewed for clear error. United 

States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2008) (citing 

United States v. Pipkin, 58 M.J. 358, 360 (C.A.A.F. 2003); 

United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007)). 

However, voluntariness of a confession is a question of law that 

this Court reviews de novo. Chatfield, 67 M.J. at 437 (citing 

Arizona v. Fulminante, 499 U.S. 279, 287 (1991); United States 

v. Bubonics, 45 M.J. 93, 94-95 (C.A.A.F. 1996)). 

 Appellant argues that the subsequent inculpatory statement 

on May 19 was involuntary and thus erroneously admitted into 

evidence. First, Appellant contends, and the majority 

incorrectly holds, that under Edwards v. Arizona, 451 U.S. 477 

(1981), it was the agents, not Appellant, who reinitiated 

interrogation. Second, in the custodial context presented in 

Iraq, Appellant argues that the statement was not a product of 
United States v. Hutchins, No. 12-0408/MC 

5

voluntary choice, but that his will was overborne by seven days 

of custodial isolation in the “can.” 

Reinitiation of Communication

 The majority’s assertion that a request for a permissive 

search authorization constitutes reinitiation of communication 

in violation of Appellant’s Fifth Amendment rights both 

misapprehends the Edwards doctrine and directly contradicts the 

jurisprudence of this Court and every federal court of appeals 

to have addressed this issue. 

 Under Edwards, when an accused invokes his right to counsel 

during custodial interrogation, he “is not subject to further 

interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further 

communication, exchanges, or conversations with the police.” 

Edwards, 451 U.S. at 484-85.1

 On one side of the equation, the 

authorities are barred from interrogation, which has been 

 

1

 In military practice, Military Rule of Evidence (M.R.E.) 

305(e)(1) incorporates the Edwards rule, stating: 

Absent a valid waiver of counsel under subdivision 

(g)(2)(B), when an accused or person suspected of an 

offense is subjected to custodial interrogation . . . and 

the accused or suspect requests counsel, counsel must be 

present before any subsequent custodial interrogation may 

proceed. 

 

Subsection (g)(2)(B)(i) describes a waiver as valid, if by a 

preponderance of evidence the government demonstrates “the 

accused or suspect initiated the communication leading to the 

waiver.” 
United States v. Hutchins, No. 12-0408/MC 

6

broadly interpreted to include “express questioning or its 

functional equivalent” of “any words or actions . . . that the 

police should know are reasonably likely to elicit an 

incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 

300-01 (1980). This Court has defined “reinitiation of 

interrogation” in violation of Edwards to include a 

confrontation having “the natural tendency to induce the making 

of a statement by” Appellant. United States v. Brabant, 29 M.J. 

259, 262-63 (C.M.A. 1989) (internal quotation marks omitted). 

On the other side, the accused may initiate further 

communication, exchanges, or conversations by making inquiries 

or statements that can “be fairly said to represent a desire on 

the part of an accused to open up a more generalized discussion 

relating directly or indirectly to the investigation.” Oregon 

v. Bradshaw, 462 U.S. 1039, 1045 (1983). 

In summary, while the authorities must halt the 

interrogation after invocation of the right to counsel, “[i]f a 

defendant makes a statement in response to words or actions by 

the police that do not constitute interrogation or if the 

defendant himself initiates further communications, the police 

are not prohibited from ‘merely listening’ to his voluntary 

statement.” United States v. Jones, 600 F.3d 847, 855 (7th Cir. 

2010); see also Alvarez v. McNeil, 346 F. App’x 562 (11th Cir. 

2009); Clayton v. Gibson, 199 F.3d 1162 (10th Cir. 1999); United 
United States v. Hutchins, No. 12-0408/MC 

7

States v. Gonzalez, No. 97-4541, 1998 U.S. App. LEXIS 14891, 

1998 WL 377901 (4th Cir. July 1, 1998) (unpublished table 

decision); United States v. Colon, 835 F.2d 27 (2d Cir. 1987). 

“Volunteered statements of any kind are not barred by the Fifth 

Amendment.” Miranda v. Arizona, 384 U.S. 436, 478 (1966).2 As 

the majority acknowledges, this Court has already determined 

that, “[a] request for a consent to search does not infringe 

 

2

 The majority conflates the two doctrines and interprets Edwards

and Bradshaw as barring the authorities from initiating not only 

any words or actions that are reasonably likely to elicit an 

incriminating response, but any communication which has the 

result of leading directly or indirectly to discussion of the 

investigation. Moreover, in this case, the military judge found 

that the communication in question was no more than a request to 

search, a well-established exception to the Edwards rule. See 

infra pp. 9-15. The majority fails to cite any authority to 

support such an expansion of the Edwards and Bradshaw doctrines, 

in direct opposition to the case law of this Court and the 

federal courts of appeals. While the Supreme Court has not 

directly addressed this issue, Justices Brennan and Marshall, 

who dissented in Bradshaw in favor of a broader interpretation 

of Edwards protections, were clear that the doctrine only barred 

the authorities from words and acts amounting to interrogation. 

See James v. Arizona, 469 U.S. 990, 993 (1984) (order denying 

certiorari) (Brennan, J., with whom Marshall, J., joined, 

dissenting) (“Under the strict rule of Edwards and Bradshaw once 

an accused has invoked the right to counsel no further 

interrogation is permitted until the accused initiates a new 

dialogue with the authorities. Sergeant Midkiff’s query ‘[i]s 

he going to show us where the body is,’ though directed at 

Officer Davis, indisputably triggered James’ statement ‘I’ll 

show you where the body is.’ That James made the statement in 

response to Midkiff’s inquiry is not, however, determinative of 

the ‘initiation’ question. If Midkiff’s inquiry is not viewed 

as interrogation for Fifth Amendment purposes, then James’ 

response might be a voluntary initiation of dialogue. Some 

official statements made within earshot of an accused in custody 

are not ‘interrogation’ even if they prompt a response.”). 
United States v. Hutchins, No. 12-0408/MC 

8

upon Article 31 or Fifth Amendment safeguards against selfincrimination because such requests are not interrogations and 

the consent given is ordinarily not a statement.” United States 

v. Frazier, 34 M.J. 135, 137 (C.M.A. 1991).3 Moreover, the 

military judge found that “the agents strictly restricted their 

contact with the accused to the request for permissive 

authorization for a search of his belongings” and “the 

government did not seek to discuss the case with the accused 

further.” In other words, it was not a circumstance where the 

agents baited their words to encourage or elicit a response, 

which is further evidenced by the fact that the agents did not 

follow-up Appellant’s question by taking an immediate statement, 

but waiting until the next day. As the military judge found, 

this “directly contradicts any allegation that this visit to his 

can was a subterfuge to reinitiate contact.” 

Federal courts of appeals that have considered this issue 

“unanimously agree that consenting to a search is not an 

incriminating statement under the Fifth Amendment because the 

consent is not evidence of a testimonial or communicative 

 

3

 The majority’s reference to United States v. Applewhite, 23 

M.J. 196 (C.M.A. 1987), is misplaced. Unlike consent to search, 

a polygraph examination involves evidence of a testimonial or 

communicative nature, which is why this Court held that it 

constituted further interrogation. Id. at 198 (“Rather than 

immediately ceasing all interrogation as the law requires, 

however, Agent Bernardi asked appellant to submit to further 

interrogation in the form of a polygraph examination.”). 
United States v. Hutchins, No. 12-0408/MC 

9

nature,” United States v. Cooney, 26 F. App’x 513, 523 (6th Cir. 

2002), and Fifth Amendment protections only apply to 

incriminating evidence of a testimonial or communicative nature. 

Schmerber v. California, 384 U.S. 757, 760–61 (1966).4 

 The majority fails to address, however, this Court’s prior 

holdings that, since a request for consent to search does not 

constitute an interrogation, Edwards does not bar police 

authorities from requesting the suspect’s consent to a search 

before he or she has consulted with counsel. United States v. 

 

4

 See, e.g., United States v. Lewis, 921 F.2d 1294, 1303 (D.C. 

Cir. 1990) (“[I]f the judge meant to suggest that an officer 

must issue a Miranda warning before asking permission to search 

an individual, ‘every federal circuit court that has addressed 

the question has reached the opposite conclusion.’”); United 

States v. Faruolo, 506 F.2d 490, 495 (2d Cir. 1974) (citation 

omitted) (“The argument that Miranda warnings are a prerequisite 

to an effective consent to search is not at all persuasive . . . 

. There is no possible violation of fifth amendment rights since 

the consent to search is not ‘evidence of a testimonial or 

communicative nature.’”); Smith v. Wainwright, 581 F.2d 1149, 

1152 (5th Cir. 1978) (“[C]onsent to search is not a selfincriminating statement; ‘[i]t is not in itself evidence of a 

testimonial or communicative nature.’”) (second set of brackets 

in original) (citation omitted); United States v. Glenna, 878 

F.2d 967, 971 (7th Cir. 1989) (“[A]lthough the district court 

believed that the officers’ request for consent to retrieve the 

registration papers was ‘reasonably likely to evoke an 

incriminating response’ and therefore ran afoul of Miranda,

every federal circuit court that has addressed the question has 

reached the opposite conclusion.”); Cody v. Solem, 755 F.2d 

1323, 1330 (8th Cir. 1985) (“a consent to search is not an 

incriminating statement”); United States v. Lemon, 550 F.2d 467, 

472 (9th Cir. 1977) (“[C]onsent to a search is not the type of 

incriminating statement toward which the fifth amendment is 

directed.”); United States v. Rodriguez–Garcia, 983 F.2d 1563, 

1568 (10th Cir. 1993); United States v. Hidalgo, 7 F.3d 1566, 

1568 (11th Cir. 1993). 
United States v. Hutchins, No. 12-0408/MC 

10

Burns, 33 M.J. 316 (C.M.A. 1991); United States v. Roa, 24 M.J. 

297 (C.M.A. 1987). In Burns, this Court rejected the 

appellant’s claim that his Fifth Amendment and Article 31, UCMJ, 

10 U.S.C. § 831 (2000), rights were violated by a request for 

consent to search after he invoked his right to counsel, holding 

that the argument was “plagued by a faulty premise, for it seems 

to ignore the significant distinctions outlined by us in Roa.” 

33 M.J. at 320. The Court explained: 

[I]nterrogation is for the purpose of eliciting from a 

suspect communications about the matter under 

investigation. However, a consent to search does not of 

itself communicate any information about the investigated 

crime; and it is not a statement regarding an offense. 

Therefore, requesting consent to search property in which 

a suspect has an interest is not prohibited by his prior 

request for counsel, because Edwards provides protection 

only as to interrogation. 

Id. (quoting Roa, 24 M.J. at 301 (Everett, C.J., concurring in 

the result)). Since consent “is not a statement” and a request 

for consent is not an “interrogation,” consent to search is “a 

neutral fact which has no tendency to show that the suspect is 

guilty of any crime” and is not in itself incriminating. Id. 

(citations omitted) (internal quotation marks omitted). 

Therefore, the Edwards doctrine does not prevent authorities 

from making a search request after a suspect invokes the right 

to counsel. Id.

 The other federal courts also agree that a defendant’s 

consent to search is not an incriminating response, and 
United States v. Hutchins, No. 12-0408/MC 

11

therefore a request for consent is not “interrogation” and does 

not violate Edwards. See United States v. Knope, 655 F.3d 647, 

654 (7th Cir. 2011) (“Knope’s argument [that his consent to 

search was invalid under Edwards because he signed after 

invoking his right to counsel] is foreclosed, however, by this 

court’s holding that ‘a consent to search is not an 

interrogation within the meaning of Miranda.’”); United States 

v. Bustamante, 493 F.3d 879, 892 (7th Cir. 2007) (“Though all 

interrogation must cease once a defendant in custody has invoked 

his right to counsel, a request to search a vehicle or home is 

not likely to elicit an incriminating response and is therefore 

not interrogation.”); United States v. Taylor, No. 99-4373, 2000 

U.S. App. LEXIS 106 at *4, 2000 WL 6146 at *2 (4th Cir. Jan 6, 

2000) (unpublished table decision) (“There was no Miranda

violation when, after Taylor informed investigators that he was 

not responding to any more questions, investigators asked him to 

consent to a search of his financial records. Asking for and 

receiving consent was not part of the interrogation because 

giving consent is not a self-incriminating statement.”); United 

States v. Gonzalez, 1998 U.S. App. LEXIS 14891, at *3-*4, 1998 

WL 377901, at *1 (“Gonzalez’ consent to search, however, is not 

an interrogation that triggers his previously invoked right to 

counsel [under Edwards].”); United States v. Shlater, 85 F.3d 

1251, 1256 (7th Cir. 1996) (“Even though Shlater stated that he 
United States v. Hutchins, No. 12-0408/MC 

12

wished to have counsel present for any interrogation regarding 

the specific events of the evening, the law provides that 

request for counsel during the interrogation does not apply to 

the subsequent request for a consent to search.”); Tukes v. 

Dugger, 911 F.2d 508 (11th Cir. 1990) (denying habeas corpus 

claim based on consent to search obtained after defendant had 

invoked right to counsel); Dunn v. Pliler, 2008 U.S. Dist. LEXIS 

32633, at *35-*39, 2008 WL 1701904, at *13-*15 (N.D. Cal. 2008) 

(consent to search was voluntary after defendant had invoked 

right to counsel); State v. Crannell, 750 A.2d 1002, 1009 (Vt. 

2000), overruled in part on other grounds by State v. Brillon, 

2008 VT 35 ¶ 41, 183 Vt. 475, 497, 955 A.2d 1108, 1123 (“The 

federal courts of appeal agree that a defendant’s consent to 

search is not an incriminating response and therefore a request 

for consent is not “interrogation” subject to limitation by 

Edwards.”). In United States v. Harmon, for example, the 

defendant invoked her right to counsel, but then made statements 

about what was in her work area after an officer requested her 

consent to search the area. 2006 U.S. Dist. LEXIS 390, at *18, 

2006 WL 42083, at *6 (D. Kan. 2006). The court found that since 

a request to search does not amount to interrogation, the 

defendant voluntarily initiated the statements and they should 

not be suppressed. Id. 
United States v. Hutchins, No. 12-0408/MC 

13

 In the present case, when Appellant invoked his right to 

counsel, the NCIS agents properly terminated the interrogation. 

Thus, when the agents requested Appellant’s consent to search 

and provided him with a permissive search authorization, 

Appellant was not subject to interrogation in the form of 

“express questioning or its functional equivalent.” Innis, 446 

U.S. at 300-01. As this Court and every federal court of 

appeals that has considered the issue have found, a request for 

consent to search does not constitute an interrogation. A 

defendant’s consent to search is neither of a testimonial or 

communicative nature, nor an incriminating response, and 

therefore a request for consent is not “interrogation” subject 

to limitation by Edwards. Furthermore, a request for consent to 

search, even if accompanied by a reminder on a form that the 

accused is under investigation, is not “for the purpose of 

eliciting from a suspect communications about the matter under 

investigation.” Burns, 33 M.J. at 320 (internal quotation marks 

and citation omitted). Therefore, even under the standard 

proposed by the majority, the request cannot be said to “open up 

a more generalized discussion relating directly or indirectly to 

the investigation.” Bradshaw, 462 U.S. at 1045. 

Rather, in asking whether “the door was still open to 

discuss his side of the story,” Appellant himself initiated 

“further communication, exchanges, or conversations with the 
United States v. Hutchins, No. 12-0408/MC 

14

police.” Edwards, 451 U.S. at 484-85. The military judge’s 

finding on this point, based on his assessment of the witnesses’ 

testimony, is not clearly erroneous. Further, as a matter of 

law, Appellant’s inquiry “evinced a willingness and a desire for 

a generalized discussion about the investigation; it was not 

merely a necessary inquiry arising out of the incidents of the 

custodial relationship.” Bradshaw, 462 U.S. at 1045-46. That 

the agents understood the question in this manner is apparent 

from the fact that they immediately reminded the accused that he 

had exercised his right to counsel, and did not continue 

questioning until the following day after Appellant had 

expressly waived his rights. See id. at 1046. 

Waiver

 Absent an Edwards violation, the question becomes: 

whether a valid waiver of the right to counsel and the 

right to silence had occurred, that is, whether the 

purported waiver was knowing and intelligent and found 

to be so under the totality of the circumstances, 

including the necessary fact that the accused, not the 

police, reopened the dialogue with the authorities. 

Id. (quoting Edwards, 451 U.S. at 486 n.9); see also M.R.E. 

305(g)(1) (“The waiver must be made freely, knowingly, and 

intelligently.”). Such assessment is based on the totality of 

the circumstances, including: the condition of the accused, his 

health, age, education, and intelligence; the character of the 

detention, including the conditions of the questioning and 
United States v. Hutchins, No. 12-0408/MC 

15

rights warning; and the manner of the interrogation, including 

the length of the interrogation and the use of force, threats, 

promises, or deceptions.” United States v. Ellis, 57 M.J. 375, 

379 (C.A.A.F. 2002).5 

 The record reflects that Appellant first invoked his right 

to counsel, immediately terminating the interrogation. 

Appellant spent seven days in confinement, and then reinitiated 

conversation. The agents did not bait him into doing so with 

threats, promises, or inducements, but merely asked Appellant 

for a permissive search authorization. Appellant then had a 

further night to consider his waiver. The next day, Appellant 

received a cleansing warning and waived his rights. 

Appellant does not contest that, after communicating with 

the agents during the search process on the evening of May 18, 

he was again orally advised of his right to counsel and that 

reinterrogation did not commence until the following day. He 

further does not contest that at that time and prior to 

questioning he received a cleansing warning orally and in 

writing. Ordinarily such circumstances are persuasive 

indication that a statement is voluntary. However, Appellant 

argues that the circumstances of his custodial detention in a 

combat zone should alter the analysis. 

 

5

 These factors go to the separate consideration of whether a 

valid waiver of the right to counsel and the right to silence 

occurred; they are not part of the Edwards determination. 
United States v. Hutchins, No. 12-0408/MC 

16

 I would conclude that Appellant’s detention conditions and 

lack of access to counsel for seven days did not vitiate what 

was otherwise his knowing and voluntary waiver. This conclusion 

is based on three factors. First, civilian courts have 

consistently found that solitary confinement, which also creates 

an inherent incentive to seek release by making a statement, 

alone does not render a waiver of rights involuntary. Appellant 

has not cited contrary authority. Custodial detention in the 

“can” no doubt creates its own pressure and incentive to obtain 

release, but Appellant has not made the case that as a matter of 

law his detention should be treated differently for Edwards

purposes than solitary confinement, where there is a subsequent 

knowing and voluntary waiver of rights. See, e.g., United 

States v. Webb, 311 F. App’x 582, 584 (4th Cir. 2009) (Webb 

initiated contact and knowingly and voluntarily waived his 

rights after being held in isolation for four days without 

access to counsel); United States v. Odeh (In re Terrorist 

Bombings of U.S. Embassies in E. Afr.), 552 F.3d 177, 214 (2d 

Cir. 2008) (“Taking into account the totality of the 

circumstances, as we must, we cannot conclude that, because Al-

‘Owhali was detained incommunicado for fourteen days, the 

statements he made after waiving his Miranda rights were 

involuntary.”); Clark v. Solem, 693 F.2d 59, 61–62 (8th Cir. 

1982) (sixty days of solitary confinement did not render plea 
United States v. Hutchins, No. 12-0408/MC 

17

involuntary); United States v. Kiendra, 663 F.2d 349, 351 (1st 

Cir. 1981) (Nineteen year-old’s solitary confinement for thirty 

days “cannot be presumed to have weakened his will to such an 

extent that he was incompetent to exercise his rights.”); Brown 

v. United States, 356 F.2d 230, 232 (10th Cir. 1966) (placement 

in disciplinary segregation for several days did not render 

confession involuntary). 

Second, while the combat context in the present case may 

have added to the pressure Appellant may have felt in isolation, 

Appellant was also aware the he was returning to the United 

States on an imminent basis -- in fact, the same day that 

Appellant made the statement. In other words, Appellant was not 

facing the prospect of an unknown and indeterminate period of 

custodial detention in the “can,” the escape from which he might 

have concluded might only come from waiving his right to counsel 

and making a statement. 

Finally, Appellant did not waive his rights immediately 

after reinitiating communication with the agents. Nor was he 

tricked, lured, or baited into doing so. Having opened the door 

to making a statement, Appellant was given the opportunity to 

reflect upon his decision overnight. This was not a snap 

decision or the product of a personality overborne. 

Certainly, seven days in the “can” without access to 

counsel is anything but a model in light of Edwards. Generally, 
United States v. Hutchins, No. 12-0408/MC 

18

this Court expects “assignment of counsel for representational 

purposes at the earliest possible moment in the process of 

military justice.” United States v. Jackson, 5 M.J. 223, 226 

(C.M.A. 1978).6 But see Miranda, 384 U.S. at 474 (“If 

authorities conclude that they will not provide counsel during a 

reasonable period of time in which investigation in the field is 

carried out, they may refrain from doing so without violating 

the person’s Fifth Amendment privilege so long as they do not 

question him during that time.”). At the same time, we are not 

charged in this case with determining best practice, but rather 

with determining whether Appellant’s constitutional rights as 

described by Edwards were violated. In the absence of a per se 

rule that a delay in providing counsel invalidates an otherwise 

knowing and voluntary waiver, I would conclude that Appellant’s 

rights were not violated. Appellant’s waiver occurred following 

his reinitiating communication. A substantial delay occurred 

before the subsequent interrogation, in which Appellant could 

contemplate and consider his options. And, a cleansing warning 

was provided in both oral and written form. Thus, for the 

purpose of Edwards and M.R.E. 305, Appellant’s statements were 

voluntary and the result of a knowing waiver under the totality 

of the circumstances. Therefore, I would hold that the military 

 

6

 While counsel must also be provided as part of the initial 

review, Rule for Courts-Martial (R.C.M.) 305(f), defense counsel 

did not raise this issue at trial. 
United States v. Hutchins, No. 12-0408/MC 

19

judge did not abuse his discretion in denying the motion to 

suppress the statement, and the statement was properly admitted 

into evidence. 

UNLAWFUL COMMAND INFLUENCE 

Background

 The offenses at issue in this case received national and 

international press attention, as did the ensuing court-martial 

of Appellant. The United States Navy-Marine Corps Court of 

Criminal Appeals (CCA) summarized the facts of the offenses as 

follows: 

The appellant was assigned as squad leader for 1st 

Squad, 2nd Platoon, Kilo Company, 3rd Battalion, 5th 

Marines, assigned to Task Force Chromite, conducting 

counter-insurgency operations in the Hamdaniyah area 

of Iraq in April 2006. In the evening hours of 25 

April 2006, the appellant led a combat patrol to 

conduct a deliberate ambush aimed at interdicting 

insurgent emplacement of improvised explosive devices 

(IEDs). The court-martial received testimony from 

several members of the squad that indicated the 

intended ambush mission morphed into a conspiracy to 

deliberately capture and kill a high value individual 

(HVI), believed to be a leader of the insurgency. The 

witnesses gave varying testimony as to the depth of 

their understanding of alternative targets, such as 

family members of the HVI or another random militaryaged Iraqi male. 

Considerable effort and preparation went into the 

execution of this conspiracy. Tasks were accomplished 

by various Marines and their corpsman, including the 

theft of a shovel and AK-47 from an Iraqi dwelling to 

be used as props to manufacture a scene where it 

appeared that an armed insurgent was digging to 

emplace an IED. Some squad members advanced to the 

ambush site while others captured an unknown Iraqi 
United States v. Hutchins, No. 12-0408/MC 

20

man, bound and gagged him, and brought him to the 

would-be IED emplacement. 

The stage set, the squad informed higher headquarters 

by radio that they had come upon an insurgent planting 

an IED and received approval to engage. The squad 

opened fire, mortally wounding the man. The appellant 

approached the victim and fired multiple rifle rounds 

into the man’s face at point blank range. 

The scene was then manipulated to appear consistent 

with the insurgent/IED story. The squad removed the 

bindings from the victim’s hands and feet and 

positioned the victim’s body with the shovel and AK-47 

rifle they had stolen from local Iraqis. To simulate 

that the victim fired on the squad, the Marines fired 

the AK-47 rifle into the air and collected the 

discharged casings. When questioned about the action, 

the appellant, like other members of the squad, made 

false official statements, describing the situation as 

a legitimate ambush and a “good shoot.” The death was 

brought to the appellant’s battalion commander’s 

attention by a local sheikh and the ensuing 

investigation led to the case before us. 

United States v. Hutchins, No. NMCCA 200800393, 2012 CCA LEXIS 

93, at *4-*6, 2012 WL 933067, at *2 (N-M. Ct. Crim. App. Mar. 

20, 2012) (unpublished) (paragraph breaks added). As cited by 

Appellant, the events in Hamdaniyah were alternatively portrayed 

in the media as one of the most significant war crimes cases to 

emerge from the Iraq war, or as an unfortunate collateral 

consequence in the fog of war. The case drew the attention of 

members of Congress, who both publicly condemned what had 

occurred, as well as questioned in public and in correspondence 

directed to senior defense officials the prosecution of 
United States v. Hutchins, No. 12-0408/MC 

21

Appellant and other members of his squad.7

 In 2007, Appellant 

was tried and convicted of conspiracy, making a false official 

statement, unpremeditated murder, and larceny, in violation of 

Articles 81, 107, 118, and 121, UCMJ, 10 U.S.C. §§ 881, 907, 

918, 921 (2006). 

 In November 2009, while Appellant’s case was pending before 

the CCA on direct appeal, the Secretary of the Navy (SECNAV) 

issued a press release and gave interviews discussing the case.8 

For example, of Appellant and his squad, the Secretary of the 

Navy stated: 

None of their actions lived up to the core values of 

the Marine Corps and the Navy . . . . This was not a 

“fog of war” case occurring in the heat of battle. 

This was carefully planned and executed, as was the 

cover-up. The plan was carried out exactly as it had 

been conceived. 

 

7

 The CCA granted Appellant’s request to attach documents to the 

record reporting from members of Congress in support of 

clemency. See, e.g., Clemency Denied for Plymouth Marine 

Convicted of Murder in Iraq, The Patriot Ledger, Nov. 19, 2009, 

http://www.patriotledger.com/ourtowns/x1792901664/Clemencydenied-for-Plymouth-Marine-convicted-of-murder-in-Iraq 

#axzz2w11HeWPV; Mark Walker, Navy Secretary Boots Four Pendleton 

Troops Involved in Iraqi’s Killing, North County Times, Nov. 19, 

2009. 

8

 On September 12, 2011, the CCA granted Hutchins’s motion to 

attach certain documents to the record which reported the 

Secretary of the Navy’s comments. The CCA determined that 

“[t]he comments were publicly made and their content and timing 

are not in dispute.” 2012 CCA LEXIS 93, at *6, 2012 WL 933067 

at *2. The CCA summarized the Secretary’s comments as 

expressing “surprise and disappointment with the sentences and 

the prospect of continuing service for the personnel involved in 

this case.” 2012 CCA LEXIS 93, at *6 n.1, 2012 WL 933067 at *2 

n 1. 
United States v. Hutchins, No. 12-0408/MC 

22

Walker, supra note 7 (quoting statement of Secretary of the Navy 

Ray Mabus in telephone interview). The Secretary of the Navy 

noted that the sentence was “commensurate” with the offense, and 

that Appellant had already received sufficient clemency. The 

Secretary of the Navy also publicly expressed “surprise” that 

members of the squad had been permitted to remain on active 

duty. In addition, the Secretary announced his decision to 

direct their separation from the service. 

 As depicted in the following table, the Secretary of the 

Navy’s comments occurred nearly a year after the Navy Clemency 

and Parole Board (NC&PB) voted to recommend that Appellant’s 

sentence be reduced. After the Secretary of the Navy’s 

statements, the NC&PB then voted against additional clemency. 

Later, however, the CCA set aside the findings and sentence. 

The Principal Deputy Assistant Secretary for Manpower and 

Reserve Affairs also approved a recommendation reducing 

Appellant’s sentence by 251 days. Hutchins, 2012 CCA LEXIS 93, 

at *18 n.6, 2012 WL 933067, at *7 n.6. 

Table 1: Timeline9

3 Aug. 2007 Members adjudge sentence at General Court-Martial 

15 Feb. 2008 Staff Judge Advocate’s Recommendation 

2 Apr. 2008 Addendum to Staff Judge Advocate’s Recommendation 

2 May. 2008 CA’s action granting clemency 

12 Jun. 2008 Record docketed at CCA for Article 66, UCMJ, review

 

9

 Adapted from Hutchins, 2012 CCA LEXIS 93, at *5, *18, 2012 WL 

933067, at *3, *7. 
United States v. Hutchins, No. 12-0408/MC 

23

Feb. 2009 NC&PB votes to reduce sentence to five years 

17 Nov. 2009 SECNAV’s public comments about Appellant’s case 

Jan. 2010 NC&PB votes against clemency or parole 

22 Apr. 2010 CCA issues opinion setting aside findings and 

sentence 

7 Jun. 2010 JAG certifies case to CAAF 

14 Jun. 2010 Appellant released from confinement 

11 Jan. 2011 CAAF reverses the CCA decision and remanded to CCA 

17 Feb. 2011 CCA redocketed case for Article 66, UCMJ, review 

30 Mar. 2011 Principal Deputy Assistant Secretary approves 

clemency recommendation reducing sentence by 251 

days 

20 Mar. 2012 CCA issues opinion affirming the sentence 

Appellant contends that the Secretary of the Navy’s 

comments to the media about his case constituted unlawful 

command influence, in light of their actual or apparent 

influence on his appellate review and clemency proceedings. 

Discussion

In deciding this case based on the admission of Appellant’s 

statement, the majority avoids a systemically important question 

involving unlawful command influence. This is a mistake. 

First, the issue of unlawful command influence was litigated 

throughout these proceedings. It is a central aspect of the 

case. As a result, Appellant’s and the public’s confidence in 

the ultimate outcome in the handling of this case rests in part 

on how this issue is addressed, or not addressed. 

Second, this Court has referred to unlawful command 

influence as “the mortal enemy of military justice.” United 

States v. Douglas, 68 M.J. 349, 355 (C.A.A.F. 2010) (internal 

quotation marks and citation omitted). If that is the case, 
United States v. Hutchins, No. 12-0408/MC 

24

then the issue should warrant inquiry and consideration by the 

military justice system’s highest, and only, civilian court. 

Moreover, this case raises matters of first impression involving 

the scope of Article 37, UCMJ, as well as the nature of a 

service secretary’s clemency process. To what extent, if at 

all, does the prohibition against unlawful command influence bar 

policymakers from addressing matters of national and foreign 

policy importance where they also involve matters of military 

justice and executive clemency? 

Framework of Review

 The framework for addressing unlawful command influence 

before this Court reflects the seriousness with which the issue 

is considered by Congress, the President, the military, and this 

Court. First, the framework is intended to promote the 

adjudication of the facts rather than a reliance on concepts of 

deference and waiver. Thus, this Court reviews allegations of 

unlawful command influence de novo. United States v. Harvey, 64 

M.J. 13, 19 (C.A.A.F. 2006); United States v. Villareal, 52 M.J. 

27, 30 (C.A.A.F. 1999). Furthermore, “[w]e have never held that 

an issue of unlawful command influence arising during trial may 

be waived by a failure to object or call the matter to the trial 

judge’s attention.” United States v. Baldwin, 54 M.J. 308, 310 

n.2 (C.A.A.F. 2001). 
United States v. Hutchins, No. 12-0408/MC 

25

 Second, while Appellant bears the initial burden of raising 

unlawful command influence, the threshold of persuasion is 

relatively low before the burden shifts back to the Government. 

United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). 

Appellant “must show: (1) facts, which if true, constitute 

unlawful command influence; (2) . . . that the proceedings were 

unfair; and (3) . . . that the unlawful command influence was 

the cause of the unfairness.” United States v. Richter, 51 M.J. 

213, 224 (C.A.A.F. 1999) (internal quotation marks omitted) 

(quoting Biagase, 50 M.J. at 150). Prejudice is not presumed 

until Appellant “produces evidence of proximate causation 

between the acts constituting unlawful command influence and the 

outcome.” Biagase, 50 M.J. at 150. Thus, the initial burden of 

showing potential unlawful command influence “is low, but [is] 

more than mere allegation or speculation.” United States v. 

Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). 

“The quantum of evidence required to raise unlawful command 

influence is ‘some evidence.’” Id. (quoting Biagase, 50 M.J. at 

150). Once an issue of unlawful command influence is raised by 

some evidence, the burden shifts to the Government to rebut an 

allegation of unlawful command influence by persuading the Court 

beyond a reasonable doubt that (1) the predicate facts do not 

exist; (2) the facts do not constitute unlawful command 

influence; (3) the unlawful command influence did not affect the 
United States v. Hutchins, No. 12-0408/MC 

26

findings or sentence; or (4) if on appeal, by persuading the 

appellate court that the unlawful command influence had no 

prejudicial impact on the court-martial. Biagase, 50 M.J. at 

151. 

Third, the Court considers both actual and apparent 

unlawful command influence. United States v. Simpson, 58 M.J. 

368, 374 (C.A.A.F. 2003). The appearance of unlawful command 

influence exists “where an objective, disinterested observer, 

fully informed of all the facts and circumstances, would harbor 

a significant doubt about the fairness of the proceeding.” 

United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). 

Consideration of an issue of unlawful command influence falls 

short if it “‘fails to take into consideration the concern of 

Congress and this Court in eliminating even the appearance of 

unlawful command influence at courts-martial.’” Stoneman, 57 

M.J. at 42 (quoting United States v. Ayers, 54 M.J. 85, 94–95 

(C.A.A.F. 2000). 

Application of Unlawful Command Influence to Civilian Leadership

As a preliminary matter, one must consider whether Article 

37, UCMJ, applies to the Secretary of the Navy. The Government 

argues that it does not. 

Article 37(a), UCMJ, establishes the prohibition against 

unlawfully influencing the action of a court-martial: 
United States v. Hutchins, No. 12-0408/MC 

27

No authority convening a general, special, or summary 

court-martial, nor any other commanding officer, may 

censure, reprimand, or admonish the court or any 

member, military judge, or counsel thereof, with 

respect to the findings or sentence adjudged by the 

court, or with respect to any other exercises of its 

or his functions in the conduct of the proceedings. 

No person subject to this chapter may attempt to 

coerce or, by any unauthorized means, influence the 

action of a court-martial or any other military 

tribunal or any member thereof, in reaching the 

findings or sentence in any case, or the action of any 

convening, approving, or reviewing authority with 

respect to his judicial acts. 

(emphasis added). As the Secretary of the Navy does not fall 

within the statutory ambit of Article 2, UCMJ, 10 U.S.C. § 802 

(2006), as the Government argues, there is a textual argument 

that Article 37, UCMJ, would not directly apply unless the 

Secretary of the Navy was acting as the convening authority. 

See Article 22, UCMJ, 10 U.S.C. § 822 (2006); Mullan v. United 

States, 42 Ct. Cl. 157, 162 (1907). 

However, an accused has a due process right to a fair trial 

and appeal, free from the undue influence of superiors, whether 

they are military officers or civilians in policy and 

administrative positions. Thus, regardless of whether Article 

37, UCMJ, applies to the Secretary of the Navy, unlawful 

influence by a civilian official may present a due process 

“error of constitutional dimension.” See Biagase, 50 M.J. at, 

149-50 (citing United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 

1986)). Based on these due process considerations, while this 
United States v. Hutchins, No. 12-0408/MC 

28

Court has never explicitly stated so, it has applied an Article 

37-based analysis to prohibit unlawful command influence by 

civilians who are in positions of authority in the military 

civilian hierarchy, but not subject to the UCMJ, including the 

Secretary of the Navy who exercises administrative command of 

the Department of the Navy.10

On the other hand, not all statements about a court-martial 

are necessarily “unlawful,” even if addressed to the merits of 

the proceeding. Such a judgment will depend on a number of 

factors. To whom, for example, are the comments addressed? How 

will they be perceived by the intended audience, as well as by 

the larger audience, intended or not? Is the spokesperson 

attempting to influence the outcome of the proceeding? Is the 

spokesperson implicitly or explicitly threatening repercussions 

if his or her view is not adopted? And, whether or not the 

speaker intended the comments to influence the outcome or the 

actors in such a manner, given the nature of the comments or the 

nature of the speaker, should the comments be deemed to have had 

been made with that intent or had that effect? 

 

10 See, e.g., United States v. Allen, 20 C.M.A. 317, 43 C.M.R. 

157 (1971); United States v. Estrada, 7 C.M.A. 635, 23 C.M.R. 99 

(1957); United States v. Fowle, 7 C.M.A. 349, 22 C.M.R. 139 

(1956); United States v. Doherty, 5 C.M.A. 287, 17 C.M.R. 287 

(1954); see also 10 U.S.C. §§ 5013-14 (detailing the role of the 

Secretary of the Navy). 
United States v. Hutchins, No. 12-0408/MC 

29

While it is tempting to be critical of officials who 

comment on pending cases and prudent for lawyers and judges to 

advise against doing so at all, there is a difference between 

what is safe or prudential and what is required as a matter of 

law or violates Article 37, UCMJ. Senior officials dealing with 

national security questions that also implicate military justice 

concerns must contemplate not only the impact of their actions 

on matters of military justice, but also the impact on foreign 

relations and national security of not commenting at all. 

Moreover, the good order and discipline of a military unit in 

combat is most assuredly a national policy matter warranting the 

private and public attention of senior officials as well as 

appropriate comment. In a system of separate and equal branches 

of government, senior officials must also weigh their duty to 

respond appropriately to inquiries from the legislative branch. 

Whatever the correct answer in a given context, surely that 

answer cannot and should not be reached without consideration of 

Article 37, UCMJ, and the advice of counsel. And, where a trial 

is ongoing or a case is on direct appeal to a military court, 

the ramifications of speaking and misspeaking increase. 

Thus, it is through a due process lens, as well as with an 

appreciation of the complex responsibilities of senior 

officials, that I would apply the Biagase framework to determine 

whether Appellant established “some evidence” that the Secretary 
United States v. Hutchins, No. 12-0408/MC 

30

of the Navy’s public comments constituted unlawful command 

influence in relation to: (1) the decision of the CCA, (2) the 

Judge Advocate General’s (JAG) certification, or (3) the 

clemency process. Because these comments occurred after 

Appellant’s court-martial and the convening authority’s action, 

my analysis is limited to the appellate and clemency 

proceedings. 

United States Navy-Marine Corps Court of Criminal Appeals

 Appellant alleges unlawful command influence in connection 

with the decision of the CCA on the ground that the Secretary’s 

comments were made while Appellant’s record was docketed at the 

court for review, and because the CCA judges, as officers in the 

Navy and Marine Corps, are subordinate to, and in theory subject 

to the administrative direction of, the Secretary. 

On the one hand, the statements made by the Secretary were 

of a sort that could have influenced the CCA and done so 

unlawfully. The comments addressed the Secretary’s specific 

views on the findings and sentence of the court-martial, 

indicating that the verdict was well founded and the sentence 

commensurate with the offense. In addition, the statements were 

publicly made and widely reported while Appellant’s case was on 

direct review. Thus, such statements could influence judges of 

the CCA in both their determination to uphold the findings and 
United States v. Hutchins, No. 12-0408/MC 

31

sentence as well as in the exercise of their power to determine 

if a sentence was appropriate. 

 On the other hand, there is no verbal or textual indication 

that the Secretary was addressing his comments to the CCA or 

intending to influence the outcome of Appellant’s direct appeal. 

Nor is there indication that the Secretary intended with his 

comments to explicitly or implicitly threaten sanction if the 

judges on the CCA did not rule in a particular manner. Indeed, 

there is no apparent indication that the Secretary made his 

comments cognizant of Article 37, UCMJ, or Appellant’s pending 

CCA appeal. That leaves the question as to whether the comments 

might nonetheless have had that affect given the Secretary’s 

status as well as the visible and vehement manner in which the 

comments were made. 

After the Secretary’s comments, the CCA issued an opinion 

setting aside the findings and sentence, and authorizing a 

rehearing. United States v. Hutchins, 68 M.J. 623 (N-M. Ct. 

Crim. App. 2010). “In the absence of evidence to the contrary, 

judges of the Courts of Criminal Appeals are presumed to know 

the law and to follow it.” United States v. Schweitzer, 68 M.J. 

133, 139 (C.A.A.F. 2009) (citing United States v. Mason, 45 M.J. 

483, 484 (C.A.A.F. 1997)). Without such evidence, courts will 

not conclude that a military judge was affected by unlawful 

command influence. United States v. Rivers, 49 M.J. 434, 443 
United States v. Hutchins, No. 12-0408/MC 

32

(C.A.A.F. 1998). Clearly, such a ruling setting aside the 

findings and sentence does not amount to “some evidence” of 

actual unlawful command influence. It was only after reversal 

and remand from this Court that the CCA found against Appellant 

on each assignment of error. 

Similarly, the facts do not support an appearance of 

unlawful command influence. An objective, disinterested 

observer, fully informed of all the facts and circumstances, 

would not harbor a significant doubt about the fairness of the 

proceeding. See Lewis, 63 M.J. at 415. To the contrary, the 

actions of the CCA would validate for a member of the public 

that the CCA acted as a fair and impartial court independent 

from external command and policy influence. 

On this record, Appellant has not moved beyond mere 

allegation or speculation in demonstrating “some evidence” that 

the CCA proceedings were unfair or affected by unlawful command 

influence. 

Judge Advocate General

 Appellant also alleges unlawful command influence with 

respect to the JAG’s certification. After the Secretary’s 

comments were made public and the CCA had set aside the findings 

and sentence, Appellant’s case was reviewed by the JAG to assess 

whether an appeal to this Court should be certified under 

Article 67, UCMJ, 10 U.S.C. § 867 (2006). The JAG then 
United States v. Hutchins, No. 12-0408/MC 

33

certified the case for review to this Court asking: (1) whether 

the CCA erred in finding that the military judge severed the 

attorney-client relationship; (2) whether, under R.C.M. 

505(d)(2)(b), the CCA incorrectly found no “good cause” on the 

record for the replacement of Appellant’s second detailed 

defense counsel; and (3) whether the lower court applied the 

wrong standard and erroneously presumed, without assessing, 

prejudice. 

 Appellant notes that the JAG reports to the Secretary of 

the Navy. See 10 U.S.C. § 5148; Dep’t of the Navy, Secretary of 

the Navy Instr. 5430.27C, Responsibility of the [JAG] and the 

[SJA] to the Commandant of the Marine Corps for Supervision and 

Provision of Certain Legal Services (Apr. 25, 2011) [hereinafter 

SECNAVINST 5430.27C]. Appellant also cites media reporting that 

an advisor to the JAG recommended against certifying the appeal. 

However, even if such media reports are treated as established 

facts of record, differing legal opinions within the office do 

not alone demonstrate unfairness or unlawful influence. One 

would expect debate on a legal matter on which lawyers, and as 

it turns out, military judges, might reasonably disagree. 

Moreover, this Court in a unanimous opinion reversed the CCA on 

the question presented. Furthermore, the certified question 

addressing the severance of an attorney-client relationship had 

implications beyond this case, as shown by the cases applying 
United States v. Hutchins, No. 12-0408/MC 

34

this Court’s earlier decision reversing the lower court. See

United States v. Hohman, 70 M.J. 98 (C.A.A.F. 2011); Wuterich v. 

United States, No. NMCCA 200800183, 2011 CCA LEXIS 148, at *2, 

2011 WL 3726640, at *1 (N-M. Ct. Crim. App. Aug. 25, 2011) 

(unpublished); United States v. Hancock, No. NMCCA 201000400, 

2011 CCA LEXIS 114, at *2, 2011 WL 2557622, at *1 (N-M. Ct. 

Crim. App. June 28, 2011). The Secretary’s comments were of a 

sort that might have influenced a subordinate officer unaware or 

uncommitted to Article 37, UCMJ. But there is no evidence they 

did and there were valid reasons to certify the case, and no 

showing that invalid reasons influenced the decision. 

 Ultimately, subordination, a divergence of staff advice, 

and a certification do not alone amount to some evidence of 

unlawful command influence. Rather, they reflect the ordinary 

process of review and appeal.

Clemency Process

Finally, Appellant argues that the Secretary’s statements 

unlawfully influenced the process of the NC&PB. As noted above, 

the NC&PB initially voted to recommend five years of clemency, 

in addition to the four years of clemency Appellant had received 

from the convening authority.11 Nearly a year later, the 

 

11 We also note that, although not part of the record, as 

publicly reported and repeatedly stated in Appellant’s briefs, 

the Assistant Secretary of the Navy rejected the NC&PB’s 

clemency recommendation on March 10, 2009, eight months before 
United States v. Hutchins, No. 12-0408/MC 

35

Secretary made his public comments about the case. Two months 

after the Secretary’s comments, the NC&PB voted against 

recommending the five years of clemency it had earlier 

considered. In 2011, the Principal Deputy Assistant Secretary 

approved a clemency recommendation reducing Appellant’s sentence 

by 251 days. 

The Government argues that the Secretary of the Navy cannot 

unlawfully influence the NC&PB’s clemency process because the 

Secretary retains the final determination to award clemency. 

Under the system established by the Secretary, the NC&PB acts 

for or provides recommendations or advice to the Secretary on 

clemency or parole matters. Dep’t of the Navy, Secretary of the 

Navy Instr. 5815.3J, Dep’t of the Navy Clemency and Parole 

Systems para. 306 (June 12, 2003) [hereinafter SECNAVINST 

5815.3J]. However, the Secretary of the Navy retains statutory 

authority over clemency decisions. Article 74, UCMJ, 10 U.S.C. 

§ 874 (2006).12 Moreover, in the context of Appellant’s case, 

 

the Secretary’s comments. See, e.g., Rich Harbert, Navy Panel 

Considers Clemency for Lawrence Hutchins III, Wicked Local 

Plymouth, (Mar. 18, 2011), 

http://wickedlocal.com/plymouth/news/x1161119945/Navy-panelconsiders-clemency-for-Lawrence-Hutchins-III#axzz2WmlcuGZI; 

Tony Perry, Marine Convicted of Murder Has a Job Waiting, Parole 

Board Is Told, L.A. Times, Jan. 7, 2010, 

http://articles.latimes.com/2010/jan/07/local/la-me-marine7-

2010jan07. 

12 The delegation of authority to the Assistant Secretary of the 

Navy for Manpower and Reserve Affairs is an ordinary delegation 
United States v. Hutchins, No. 12-0408/MC 

36

the Secretary not only retained general authority over clemency, 

but specifically reserved the opportunity to make the decision 

himself through regulatory exception. The NC&PB submits to the 

Secretary, with recommendations, cases such as “[a]ny individual 

whose clemency may be the subject of controversy or substantial 

congressional or press interest as determined by SECNAV or a 

designee” or cases in which the NC&PB recommends clemency and 

the approved, unsuspended sentence to confinement is in excess 

of ten years. SECNAVINST 5815.3J para. 308(a)(6)(d)-(e) 

(emphasis removed). The Secretary of the Navy has delegated the 

authority to act in matters of clemency and parole to the 

Assistant Secretary of the Navy for Manpower and Reserve 

Affairs, except in cases involving the death penalty, life 

without parole, and national security. Id. para. 205; Dep’t of 

the Navy, Secretary of the Navy Instr. 5430.7Q, Assignment of 

Responsibilities and Authorities in the Office of the Secretary 

of the Navy para. 7(b)(3)(f)(2) (Aug. 17, 2009). 

 

by the Secretary of the Navy to a subordinate officer within the 

executive branch, and does not require the Secretary of the Navy 

to amend or revoke the instruction to exercise his statutory 

authority. See United States v. Nixon, 418 U.S. 683, 696, 694 

(1974) (holding that, unlike an “ordinary delegation . . . to a 

subordinate officer,” the Attorney General’s delegation was 

“with unique authority and tenure.” As long as the regulation 

remained in effect, the authority was the Special Prosecutor’s 

to exercise, not the Attorney General’s.). Here, the Secretary 

did not deny himself the authority to act. 
United States v. Hutchins, No. 12-0408/MC 

37

The Government further argues that clemency is inherently 

discretionary and executive in nature, and is not subject to 

review on due process grounds. Clemency is a “highly 

discretionary” power vested in the executive, United States v. 

Travis, 66 M.J. 301, 303 (C.A.A.F. 2008), which, as a general 

matter, “has not traditionally ‘been the business of courts.’” 

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 284 (1998) 

(quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 

(1981)).13 The Secretary’s instructions provide that clemency 

“is not a right, but a discretionary decision of the NC&PB or 

SECNAV.” SECNAVINST 5815.3J para. 308(a) (emphasis omitted). 

 

13 See also Travis, 66 M.J. at 303 (“We cannot and do not 

substitute our judgment about the merit of a request for 

clemency or the weight to be given any specific clemency 

recommendation by a convening authority.”); United States v. 

Healy, 26 M.J. 394, 395-96 (C.M.A. 1988) (While the courts 

determine sentence appropriateness, “[t]he responsibility for 

clemency, however, was placed by Congress in other hands.”); 

United States v. Darville, 5 M.J. 1, 2 (C.M.A. 1978) (“Congress 

has continued the previous pattern of limiting the power of 

suspension to The President, to the Secretary of the Department, 

and the convening authority, who may order the sentence 

executed.”); United States v. Cavallaro, 3 C.M.A. 653, 655, 14 

C.M.R. 71 (1954) (“Congress has seen fit to grant to certain 

reviewing authorities the right to commute or suspend the 

execution of a sentence, but it did not extend that authority to 

boards of review.”); Courts-Martial -- Pay Status of Enlisted 

Men in Naval Service -- Duty of Comptroller Gen., 34 Op. Atty. 

Gen. 162, 165-66 (1924) (When the Secretary of the Navy makes a 

clemency determination, “the question of whether you have 

exercised your discretion wisely or erroneously is not subject 

to review by others, but your action is conclusive, and the 

matter has become res ajudicata.”). 
United States v. Hutchins, No. 12-0408/MC 

38

A couple of break points emerge with respect to this third 

allegation of unlawful command influence. First, the Secretary 

of the Navy’s authority to commute, remit, or suspend all or 

part of a sentence is found in Articles 71 and 74, UCMJ, as well 

as in 10 U.S.C. § 953 (2006). In the present case, the record 

is not clear whether the exercise or failure to exercise 

clemency in this case occurred pursuant to Article 74, UCMJ, and 

thus was part of the military justice process, or solely 

pursuant to 10 U.S.C. § 953. While it is not clear whether the 

Secretary’s clemency process at issue in this case was conducted 

pursuant to Article 74, UCMJ, 10 U.S.C. § 953, or both, it is 

clear that the clemency process authorized pursuant to Article 

60, UCMJ, 10 U.S.C. § 860 (2006), was complete at the time the 

Secretary made his comments. 

Second, with respect to convening authorities, this Court 

has held that the clemency process must comply with the “essence 

of post-trial practice [which] is basic fair play -- notice and 

an opportunity to respond.” United States v. Lowe, 58 M.J. 261, 

263 (C.A.A.F. 2003) (internal quotation marks and citations 

omitted). However, federal civilian courts have concluded that 

the application of the due process clause only ensures that an 

accused receive the clemency procedures explicitly set forth by 

statute, and that the procedure followed in rendering the 

clemency decision will not be wholly arbitrary, capricious, or 
United States v. Hutchins, No. 12-0408/MC 

39

based upon whim, for example, by flipping a coin. Duvall v.

Keating, 162 F.3d 1058 (10th Cir. 1998); see also Noel v. 

Norris, 336 F.3d 648 (8th Cir. 2003) (if a state actively 

interferes with a prisoner’s access to the system that it has 

established for considering clemency petitions, due process is 

violated). Thus, absent a statutory or constitutional provision 

to the contrary, due process does not include the right of an 

accused seeking clemency to have the request reviewed by a 

decision maker or an executive possessing the level of 

impartiality normally required of a judge presiding over an 

adjudicatory proceeding.14 This is true of the convening 

authority acting under Article 60, UCMJ, 10 U.S.C. § 860 (2006). 

 

14 See Perry v. Brownlee, 122 F.3d 20 (8th Cir. 1997) (applying 

Arkansas law) (petitioner does not have right under Equal 

Protection Clause to unbiased decision maker under Arkansas 

executive clemency statute); Joubert v. Neb. Bd. of Pardons, 87 

F.3d 966 (8th Cir. 1996) (applying Nebraska law) (pardons board 

members’ alleged predisposition to deny inmate’s application for 

commutation of death sentence, based on members’ statements to 

media, did not preclude finding that members adequately 

considered application in accordance with statute); Otey v. 

Stenberg, 34 F.3d 635 (8th Cir. 1994) (inmate under sentence of 

death had no constitutionally protectable interest in clemency 

that could be implicated by fact that Nebraska Attorney General, 

who had prosecuted defendant, sat on clemency board or by fact 

that two assistant attorneys general appeared in opposition to 

commutation); Bacon v. Lee, 549 S.E.2d 840 (N.C. 2001) (allowing 

the governor, who served as attorney general throughout part or 

all of death row inmate’s appellate and post-conviction review 

proceedings, to consider the inmate’s clemency request did not 

violate due process, despite the governor’s alleged “actual 

bias” or “inherent conflict of interest”). 
United States v. Hutchins, No. 12-0408/MC 

40

And it is true of the Secretary of the Navy acting pursuant to 

Article 74, UCMJ. 

Third, in my view, the Secretary of the Navy would be hard 

pressed to exercise unlawful command influence over the NC&PB 

clemency decision over which he retains sole discretion with the 

sort of public comments attributed to him in this case. 

However, the exercise of sole discretion does not permit the 

exercise of indiscretion. The Secretary is not free to act in a 

manner that is arbitrary and capricious or that runs afoul of 

constitutional principle, such as those pertaining to the equal 

protection of the law. 

Fourth, and more relevant for the purposes of this case, 

the fact that the Secretary’s comments were addressed to his 

clemency process does not remove the matter from the 

jurisdictional purview of this Court; not while direct review is 

pending. That is because a clemency decision taken by the 

Secretary pursuant to Article 74, UCMJ, necessarily impacts the 

sentence that is reviewed by the CCA not only to assure that it 

is correct in law and fact, but also to determine whether it is 

an appropriate sentence. In short, an unlawfully influenced 

clemency decision under Article 74, UCMJ, might well directly 

influence the substance of direct appellate review by changing 

the sentence reviewed by the CCA and indirectly so by 
United States v. Hutchins, No. 12-0408/MC 

41

influencing the views of CCA judges as to whether a sentence was 

appropriate. But that allegation was already addressed. 

The problem for Appellant with respect to this allegation 

of unlawful command influence is that, as previously discussed, 

he has not shown “some evidence” that the Secretary’s comments 

influenced or appeared to influence, let alone unlawfully 

influenced the CCA, which overturned the findings and sentence, 

or the Judge Advocate General’s decision to certify the case to 

this Court. With respect to the Secretary’s NC&PB clemency 

process, exercised during direct review, the Appellant has not 

produced “some evidence” that the Secretary acted in a manner 

that was contrary to regulation, arbitrary and capricious, in 

violation of constitutional principle, or that unlawfully 

influenced a member of the NC&PB. The record also does not 

support apparent unlawful command influence. A disinterested 

observer, fully informed of all the facts and circumstances, 

would not harbor a significant doubt about the fairness of the 

proceeding. See Lewis, 63 M.J. at 415. This is especially so 

given the independent nature of the CCA’s review as well as the 

subsequent independent review by this civilian Court. 

 For the reasons stated above, I must respectfully dissent.