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Dubay Evidentiary Hearings on Appeal

Dubay Hearings in Appellate Cases

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.

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.

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 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.

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 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.

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.

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