TRIAL STAGES: Post-Trial Hearings: DuBay / Factfinding Hearings

2018 (October Term)

United States v. Tovarchavez, 78 M.J. 458 (DuBay hearings are an oft-utilized and well-accepted procedural tool used by appellate courts in the military for addressing a wide range of post-trial collateral issues). 

2008 (Transition)

United States v. Lee, 66 M.J. 387 (appellant’s conflict-of-interest allegations on appeal that his detailed defense counsel had been working as a prosecutor on another serious case while simultaneously representing him, and that in this other case, his detailed counsel was working for the same trial counsel who prosecuted his case, required remand for a factfinding hearing pursuant to United States v. DuBay, 17 CMA 147, 37 CMR 411 (1967), for further findings and conclusions of law.) 

2006

United States v. Harvey, 64 M.J. 13 (an evidentiary DuBay hearing is a method to develop facts necessary for appellate review; it is a well-accepted procedural tool for addressing a wide range of post-trial collateral issues).

United States v. Luke, 63 M.J. 60 (newly discovered evidence brought forth by appellant that the forensic chemist who testified for the prosecution with respect to DNA evidence in the case (1) had engaged in improper practices at the government testing laboratory, such as cross-contamination, alteration of evidence, and entry of false data, and (2) had access to the evidentiary samples tested in the case, was sufficient evidence to warrant a further factfinding inquiry under United States v. DuBay, 17 CMA 147, 37 CMR 411 (1967), as to whether he contaminated appellant’s DNA sample or otherwise falsified pertinent test results).

United States v. Lovett, 63 M.J. 211 (an appellate court need not remand a case for factfinding if, under the principles in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), it can determine that the facts asserted, even if true, would not entitle appellant to relief). 

2005

United States v. Singleton, 60 MJ 409 (in Ginn, we announced the following six principles to be applied by CCAs in disposing of post-trial, collateral, affidavit-based claims, such as ineffective assistance of counsel: (1) if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in appellant's favor, the claim may be rejected on that basis; (2) if the affidavit does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejected on that basis; (3) if the affidavit is factually adequate on its face to state a claim of legal error and the Government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts; (4) if the affidavit is factually adequate on its face but the appellate filings and the record as a whole “compellingly demonstrate” the improbability of those facts, the court may discount those factual assertions and decide the legal issue; (5) when an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record (including the admissions made in the plea inquiry at trial and appellant's expression of satisfaction with counsel at trial) unless the appellant sets forth facts that would rationally explain why he would have made such statements at trial but not upon appeal; and (6) the CCA is required to order a factfinding hearing only when the above-stated circumstances are not met).

(Ginn requires a DuBay hearing when a CCA determines that a dispute cannot be resolved entirely by applying the Ginn framework to post-trial affidavits; there being a factual dispute in this case that the CCA could not resolve under either the first or fourth Ginn principles, the court below properly ordered a DuBay hearing; because the convening authority is in the best position to determine whether it is practicable to hold a DuBay hearing based on time, personnel, expenditures, and potential relief, the court below also properly offered the convening authority the option of either ordering a DuBay hearing, or if that was impracticable, returning the case to the CCA to grant the relief it determined appropriate, based on its contingent evaluation of appellee’s affidavits). 

(the CCA properly applied the Ginn principles and ordered relief only after receiving the convening authority’s knowing and informed DuBay declination, unaccompanied by additional Government pleadings; in this procedural posture, it would not have been unreasonable for the CCA to have construed the Government’s position as no longer contesting the relevant facts under Ginn’s third principle; while the CCA did not cite Ginn in its relief order, that precedent was consistently discussed and applied throughout the appellate process; in any event, this Court is free to determine when the Ginn framework should be applied, as well as whether the lower court properly applied that framework; the clear purpose of Ginn was to stop the service courts from resolving disputed factual issues on the basis of extra-record affidavits, without a trial-level hearing, except in certain, specified instances; the action by the CCA properly applied our opinion in Ginn and was consistent with our decision in Fagan).

2004

United States v. Fagan, 59 MJ 238 (the mere submission of an affidavit does not trigger the need for a DuBay post-trial evidentiary hearing; nor is it the mere filing of responsive affidavits from the Government that triggers the requirement for a DuBay hearing; the Ginn framework requires a DuBay hearing only if the opposing affidavits raise a fact dispute that is material to the resolution of the post-trial claim and the claim cannot be otherwise resolved through the application of the five Ginn factors; in the present case, it is the inapplicability of any of the five Ginn factors and the presence of affidavits that raise material fact disputes concerning the post-trial claim that require a DuBay hearing).

(the central principles of Ginn and Wheelus are completely independent of one another; the broad power to moot claims of prejudice as referred to in the context of Wheelus is a remedial tool available to address acknowledged post-trial errors; the exercise of the broad power referred to in Wheelus flowed from the existence of an acknowledged legal error or deficiency in the post-trial process; it is not a broad power to moot claims of prejudice in the absence of an acknowledged legal error or deficiency, nor is it a mechanism to moot claims as an alternative to ascertaining whether a legal error or deficiency exists in the first place; however broad it may be, the power referred to in Wheelus does not vest the Court of Criminal Appeals with authority to eliminate that determination and move directly to granting sentence relief; rather, a threshold determination of a proper factual and legal basis for the post-trial claim must be established before any entitlement to relief might arise).

(where a claim is post-trial, collateral, and affidavit-based, Ginn is the appropriate threshold framework under which the claim needs to be evaluated; if no post-trial collateral error or deficiency has been acknowledged, then Wheelus does not come into play until, and unless, that acknowledgement is made).

United States v. Rodriguez, 60 MJ 239  (regarding the right to counsel, the principles enunciated by the Court in other post-trial settings also apply to  DuBay fact-finding hearings).

(the absence of counsel at a DuBay hearing will effectively result in denial of the right to counsel; however, if substitute counsel who has the legal responsibility to protect the accused’s post-trial interests is present, it cannot be said that the accused has been deprived of his right to counsel).

(error by substitute counsel of serving without first having entered into an attorney-client relationship could be tested for prejudice, and the appropriate test for prejudice is that prescribed in Article 59(a)).

(although accused’s detailed defense counsel improperly severed the attorney-client relationship with accused between second and third sessions of DuBay hearing, and substitute counsel proceeded to represent accused during the final two sessions of hearing without establishing an attorney-client relationship, accused was not prejudiced, considering that substitute counsel represented accused’s cause zealously and that questions assigned for DuBay consideration did not relate directly to matters within accused's personal knowledge).

2003

United States v. Dugan, 58 MJ 253 (where appellant has successfully raised the issue of unlawful command influence and a DuBay hearing is necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial, it is the Government that must now rebut the presumption of unlawful command influence (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the DuBay judge that the facts do not constitute unlawful command influence; or (3) by persuading the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial; whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt).

(when unlawful command influence has been directed at court members, the Government’s ability to persuade the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial is limited by Mil.R.Evid. 606(b); this rule prohibits inquiry into two types of matters: (1) any matter or statement occurring during the course of the deliberations, and (2) the effect of anything upon a member’s or any other member’s mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member’s mental process in connection therewith).

(Mil.R.Evid. 606(b) permits testimony about any matter or statement occurring during the deliberations when there is a question whether there was unlawful command influence; this exception does not permit circumvention of the prohibition against inquiry into the effect on a member; thus, in this case, Mil.R.Evid. 606(b) permits voir dire of the members regarding what was said during deliberations about the commander’s comments, but the members may not be questioned regarding the impact of any member’s statements or the commander’s comments on any member’s mind, emotions, or mental processes; in conducting the DuBay proceedings, the military judge shall not voir dire any member as to the effect of anything upon a member’s mind or emotions as influencing a member to assent to or dissent from the findings or sentence or a member’s mental process in connection therewith).

(if the military judge who presides at the DuBay is not satisfied beyond a reasonable doubt that unlawful command influence did not exist during the sentencing phase of appellant’s court-martial, or that one or more members did not exert the influence of superior rank on a junior member or purport to wear the mantle of the convening authority by conveying to the other members his or her interpretation of the convening authority’s message, that judge shall set aside appellant’s sentence and order a sentence rehearing).

2002

United States v. Sales, 56 MJ 255 (United States v. Ginn, 47 MJ 236 (1997), sets out six principles for determining whether a factfinding hearing is required to resolve conflicting posttrial affidavits regarding allegations of ineffective assistance of counsel: (1) First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in appellant’s favor, the claim may be rejected on that basis; (2) Second, if the affidavit does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejected on that basis; (3) Third, if the affidavit is factually adequate on its face to state a claim of legal error and the government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts; (4) Fourth, if the affidavit is factually adequate on its face but the appellate filings and the record as a whole "compellingly demonstrate" the improbability of those facts, the court may discount those factual assertions and decide the legal issue; (5) Fifth, when an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record unless the appellant sets forth facts that would rationally explain why he would have make such statements at trial but not upon appeal; and (6) Sixth, the Court of Criminal Appeals is required to order a factfinding hearing only when the above-stated circumstances are not met.

(the question of whether a lower court correctly applied the principles of United States v. Ginn, 47 MJ 236 (1997), will be reviewed de novo).

(Court of Criminal Appeals erred by not ordering a factfinding hearing under the principles of United States v. Ginn, 47 MJ 236 (1997), where: (1) With respect to the first Ginn principle, there was a reasonable probability that there would have been a different result if the factual conflicts among the affidavits were resolved in appellant’s favor; (2) With respect to the second principle, the affidavits did not set out "speculative or conclusory observations"; and (3) With respect to the fourth principle, the appellate filings and the record as a whole did not "compellingly demonstrate" the improbability of the facts asserted by appellant’s affidavits).

United States v. Humpherys, 57 MJ 83 (an evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding a panel member’s failure to disclose information during voir dire; the hearing enables the military judge to investigate and resolve allegations, by interviewing the challenged panel members, while the details of trial are still fresh in the minds of all participants, so that the judge can assess first-hand the demeanor of the panel members as they respond to questioning from the bench and counsel).

United States v. Campbell, 57 MJ 134 (a system through which the military appellate courts address post-trial issues such as unlawful command influence and prosecutorial misconduct is well established within the military judicial process - military appellate courts return cases to the trial level when it becomes necessary to develop facts not contained within the record of trial, and where affidavits do not suffice).

(when faced with a post-trial dispute over discovery relevant to an appeal, an appellate court needs to conduct an analysis similar to the following:  (1) it must determine whether the appellant met his threshold burden of demonstrating that some measure of appellate inquiry is warranted; (2) if the court decides inquiry is warranted, it must determine what method of review should be used).

(to determine whether the appellant met his threshold burden of demonstrating that some measure of appellate inquiry into extra-record matters is warranted the appellate court should consider, among other things:  (1) whether the defense has made a colorable showing that the evidence or information exists; (2) whether or not the evidence or information sought was previously discoverable with due diligence; (3) whether the putative information is relevant to appellant’s asserted claim or defense; and (4) whether there is a reasonable probability that the result of the proceeding would have been different if the putative information had been disclosed).

(a Court of Criminal Appeals has discretion to determine how additional evidence, when required, will be obtained, e.g., by affidavits, interrogatories, or a factfinding hearing; such determinations are necessarily contextual and not generally conducive to a single solution, and a Court of Criminal Appeals may conclude in some instances, such as where there is the need to discover particular facts, that a DuBay evidentiary hearing may be necessary).

(a DuBay hearing need not be ordered if an appellate court can conclude that the motion and the files and records of the case conclusively show that an appellant is entitled to no relief; a hearing is unnecessary when the post-trial claim:  (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and records of the case).

(under the particular facts of this case, including the extensive appellate history involved, Court of Appeals for the Armed Forces concluded that the interests of justice were better served by remand to the Court of Criminal Appeals to determine with certainty whether a report pertaining to prosecutorial misconduct exists, and if it does, to determine in camera whether it is relevant to appellant’s appeal and whether further inquiry is warranted).

2001

United States v. Baldwin, 54 MJ 308 (where appellant’s allegations were sufficient to raise a post-trial issue of unlawful command influence, a DuBay hearing was required to develop a full record of material facts in order to determine appellant’s entitlement to relief).

United States v. Erby, 54 MJ 476 (in the absence of findings of fact, appellant’s allegations of cruel and unusual punishment required remand to the Court of Criminal Appeals for factfinding where:  (1) Court of Appeals for the Armed Forces could not determine on this record whether any of the asserted facts, individually or in conjunction with other evidence, provided a basis for deciding whether appellant exhausted available administrative remedies; and (2) the court could not determine without further clarification whether the alleged mistreatment amounted to a violation of Article 55, UCMJ, or the Eighth Amendment).

United States v. White, 54 MJ 469 (Court of Appeals for the Armed Forces need not remand a case for further factfinding if the court can determine that the facts asserted, even if true, would not entitle an appellant to relief).

United States v. Dewrell, 55 MJ 131 (a hearing pursuant to United States v. Ginn, 47 MJ 236 (1997), is not required where the issues may be resolved based on the appellate filings and the record).

United States v. Anderson, 55 MJ 198 (conflicting affidavits on an issue of ineffectiveness of counsel may not be resolved without a factfinding hearing, unless:  (1) the facts alleged by the appellant would not result in relief even if true; (2) the appellant does not assert specific facts but only speculative or conclusionary observations; (3) the appellant’s factual assertions are not contested; (4) the record as a whole compellingly demonstrates the improbability of the facts asserted by the appellant; or (5) the appellant’s factual assertions contradict statements made by the appellant on the record and the appellant does not rationally explain why he would have made such statements at trial but not upon appeal).

2000

United States v. Guthrie, 53 MJ 103 (the mere submission of an affidavit by an appellant does not trigger the need for a post-trial evidentiary hearing).

United States v. Williams, 53 MJ 316 (under United States v. Ginn, 47 MJ 236 (1997), there was no error by the Court of Criminal Appeals in refusing to remand this case for a hearing on jurisdiction where an initial conflict between affidavits was resolved by a second affidavit submitted by one of the affiants).

United States v. Thompson, 54 MJ 26 (where the allegations in appellant’s affidavit were such that, if true, they would support a legally justiciable claim of ineffective assistance of counsel, and where those allegations left too many factual questions concerning counsel’s effectiveness unresolved on the record, it is necessary to obtain affidavits on appellant’s allegations from defense counsel and then determine whether a DuBay hearing was required).

1999

United States v. Sherman, 51 MJ 73 (where post-trial submissions from appellant, defense counsel, and trial counsel raise factual dispute about (1) whether there was a sub rosa agreement not to raise motions concerning unlawful command influence and illegal pretrial confinement, (2) whether appellant gave untruthful answers to trial judge, (3) whether defense counsel knew that appellant’s answers were untruthful, and (4) whether other matters suggesting unlawful command influence were correct, there were too many unresolved questions in the record for the court to affirm; case remanded for a fact-finding hearing on specified issues).