Judicial testimony – not

United States v. Matthews is an interesting new Army decision.

In this case the appellate courts ordered a DuBay hearing.  During that hearing the prior military judge testified as to his rationale for various decisions at trial.  Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error.  On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.

On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.

As a result of this new review, ACCA could not find harmless error and set aside Charge I.  Of course this required then a sentence reassessment.  The initial sentence – now served – was RIR to E1, 11 months confinement, and a BCD.  After reconsideration the court found that appellant would have been sentenced to at least RIR to E1, one month confinement, and a BCD.