Court-Martial Trial Practice Blog
CAAF has visited statements made by military judges post-trial typically in bridging the gap sessions. Here is an interesting grant and set-aside:
No. 08-0215/NA. U.S. v. Tyrice L. HAYES. CCA 200600910. Review granted on the following issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY JUDGE’S (1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE FOR BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY, DURING TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.
The decision of the Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review under Article 66(c), UCMJ. The court below will obtain affidavits from the military judge and other appropriate persons, if any, relating to what, if any, statements the military judge made concerning the accused in a “Bridging the Gap” session with counsel after the trial. It may order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), if appropriate. The affidavit(s) should be limited to determining whether statements were made by the military judge in the session referenced above, and if so, what was said. See United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009).