Dubay evidentiary hearings on appeal

During an appeal, it sometimes becomes necessary for the appellate court to have more facts before they decide an issue. Let's take an IAC claim. The Appellant submits anaffidavit alleging his counsel was deficient and that he was prejudiced. Sometimes the court will resolve the issue without any further evidence. Sometimes the court will order an affidavit from the defense counsel. When there is a significant clash between the two affidavits on a critical point they court will want more facts and will order a DuBay hearing to gather that evidence.

A new judge will call witnesses and take testimony and accept documentary evidence. Once that's gathered the judge will make findings of fact and conclusions of law and decide if there was IAC and that the appellant was prejudiced.

Another Order for a hearing in accordance with United States v. DuBay, 17 C.M.A. 147 (1967), just received in one of our cases. And over the transom today is an Order for the Army Court of Criminal Appeals (ACCA) in which the Court has ordered an evidentiary hearing. The hearing will determine the facts surrounding an unlawful command influence claim. (I won’t say much more now because the case is in litigation and I don’t want to spoil the case.) This Order is the second in a year in a case I’m litigating on appeal. Earlier the ACCA ordered a Dubay hearing on a claim of ineffective assistance of counsel. After the hearing, the Dubay hearing judge agreed with us. The ACCA then set aside the convictions. The appeals court found that the military defense counsel had not provided effective assistance during their representation of the client. Because of this the case was dismissed. United States v. Jones, 2017 CCA LEXIS 308. Initially we thought there would be a retrial. But through our effective representation the case was dropped completely--there was no retrial.

I’m writing about this now because of a disturbing case and trend from the ACCA—United States v. Tovarchavez (Sept. 2017). The problem for the appellant was how the case was presented post-trial at the convening authority level and to ACCA. A friend and colleague have observed that: The Army Court now wants parts of the record of trial "certified" if the Appellant wants them considered during the course of the appeal. I’m not sure he’s completely right. But he is right that you need to be aware at trial and on the appeal of the type of evidence, its reliability, and authenticity when appealing a case.

Having done Dubay hearings I can say they are not easy.

The most recent DuBay hearing we had was to take testimony from the panel members (jury). We had good evidence that the jury may have decided the case base on the ongoing sexual assault issues and to make sure the Army didn't look bad. After the hearing, the judge ruled in our favor and the appellate court agreed. Subsequently there was a retrial in a case and a panel of unprejudiced members found the client Not Guilty.

Give us a bell at 703-298-9562 or eMail to mljucmj@court-martial.com if you need to discuss an appeal and Dubay hearings. You need a lawyer who has experience cross-examining a lawyer or lawyers.