Dubay evidentiary hearings on appeal
Dubay hearings in appellate cases.
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.
In each such case, the record will be remanded to a convening authority other than the one who appointed the court-martial concerned and one who is at a higher echelon of command. That convening authority will refer the record to a general court-martial for another trial. Upon convening the court, the law officer will order an out-of-court hearing, in which he will hear the respective contentions of the parties on the question, permit the presentation of witnesses and evidence in support thereof, and enter findings of fact and conclusions of law based thereon.
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.
On 23 November 2016, this court returned appellant's record of trial to The Judge Advocate General for a hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). United States v. Jones, ARMY 20140528 (Army Ct. Crim. App. 23 Nov. 2016) (order). On 2 February 2017, the DuBay hearing concluded. The military judge made findings of fact and conclusions of law with respect to whether appellant's defense counsel were ineffective. (App. Ex. LXXXIII). We hereby adopt his findings of fact and conclusions of law. We agree that defense counsel were deficient in failing to: 1) "present evidence about [TB's] motives to engineer this prosecution and her repeated statements that she would makes sure [appellant] was punished;" 2) "conduct a full investigation regarding [TB] and her motives to fabricate;" and 3) "prepare [appellant] to testify." Appellant was found not guilty [*3] of nineteen specifications. The five specifications of which he was found guilty all involved TB's children. We agree there is a reasonable probability of a more favorable result had the deficiencies not occurred.
United States v. Jones, 2017 CCA LEXIS 308. Now we are waiting to see if there will be a retrial.
the Army Court has now decided that documents and other materials in the Pretrial and Allied Papers section of the Record of Trial, as well as any other “attached matters” now require certification or authentication. The Army Court appears to suggest that parties must either have the military judge certify or authenticate these matters before the Record of Trial is authenticated; stipulate to the authenticity of the documents; file a motion on appeal for the Army Court to consider the documents; or obtain an affidavit or some other sworn declaration that the matter is what a party says it is. For practical purposes, this means that cases involving claims of Ineffective Assistance of Counsel (IAC) will now require affidavits or some other sworn declaration from every relevant witness for that issue on appeal.