U.S. v. Thompson, 54 M.J. 26

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. 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

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. critical, disapproving, or even hostile judicial remarks concerning defense counsel do not require a judge to recuse himself in the ordinary case
2. even though nerves may have become frayed during a give and take between the military judge and defense counsel, the military judge was not obligated to recuse himself where: the record reflects efforts by the military judge to clarify and remedy previously asserted defense concerns where admissions of ineffectiveness were made; the record shows that the military judge was tough on trial counsel as well as defense counsel; the military judge expressly disclaimed any bias against defense counsel; and the record shows repeated statements by defense counsel resisting the military judge’s attempts to remedy previously asserted errors in the case

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. 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