Court-Martial Trial Practice Blog
The CAAF took the following action last Friday.
No. 16-0309/AR. U.S. v. Michael B. O’Connor. CCA 20130853. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel were ineffective in failing to investigate alleged unlawful command influence in the preferral process. SeeUnited States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS COUNSEL FAILING TO INVESTIGATE ALLEGED UNLAWFUL COMMAND INFLUENCE IN THE PREFERRAL PROCESS.
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals shall order a hearing pursuant to DuBay. Once the necessary information is obtained, the court will complete its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.
The ACCA opinion does not appear to be on their website. The one O’Connor case is actually an Air Force case. All I could find in Lexis is an earlier grant of a motion for extra time to file a supplement.
More to come.