Articles Tagged with dubay

United States v. Sagona, sentenced at court-martial on 8 May 2008, appeal decided 30 September 2010.

The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity.  R.C.M. 704 covers the issues of immunity, tempered by case law.  Basically only the GCMCA can grant immunity, but . . . .  Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing.  See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

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.

NMCCA has issued six new decisions, of which four are merits.

United States v. Maharrey, post-trial delay case.

United States v. Thornton.  Appellant raises ineffective assistance of counsel (IAC) and sufficiency of the evidence.  The findings and sentence are set-aside based on the IAC.  The IAC relates to several issues:  failure to properly advise on forum; failure to prepare appellant to testify; failure to cross-examine some witnesses.  A DuBay (United States v. DuBay, 37 C.M.R. 411 (1986)) hearing was ordered.  The military judge found several issues of IAC.  The DuBay judge did not agree with all the allegations of IAC.