Diamond petition filed

The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond.

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested.

U.S. District Court Judge Terrence W. Boyle dismissed that case Wednesday, ruling it included "no genuine issue of material fact."

Boyle also denied a certificate of appealability, which would be needed for Theer to file her case in a federal appellate court.

Diamond was a staff sergeant on Fort Bragg when he was convicted in August 2001 of first-degree murder. He was sentenced to life in prison without parole and demoted to private.

In the appeal that was denied earlier this year, Diamond’s lawyers argued that he did not receive a fair trial because his lawyers . . . were paid in part by Michelle Theer.  . . . In May, the Army Court of Criminal Appeals ruled that Brewer and Mitchell were unaware that they were paid by Michelle Theer and, therefore, no conflict of interest existed.

Here is a link to the first ACCA decision in United States v. Diamond, 65 M.J. 876 (A. Ct. Crim. App. 2007).  The case was a very complete look at co-conspirators and admission of co-conspirator statements.

On 23 January 2009, CAAF took the following action.

No. 08-0365/AR. U.S. v. John M. DIAMOND. CCA 20010761. Review granted on the following issue:

WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT’S CIVILIAN DEFENSE COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT.

The record of trial is returned to the Judge Advocate General of the Army for remand to the Army Court of Criminal Appeals for further appellate inquiry on the granted issue. Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

United States v. Diamond, 67 M.J. 247 (C.A.A.F. 2009).

Here is a link to the second ACCA decision in United States v. Diamond, ARMY 20010761, 2010 CCA LEXIS 66 (A. Ct. Crim. App. May 26, 2010, on remand to treat the conflict of interest issue.