U.S. v. Fagan, 59 M.J. 238

Trial Stages: Post-Trial Hearings: Authority for

1. this Court long ago recognized that resolution of collateral post-trial claims requires a procedure by which the Courts of Criminal Appeals, as well as this Court, may expand the record of trial where appropriate through an evidentiary hearing; the origin of that process is found in DuBay, where we remanded that case for a fact-finding hearing on post-trial claims of unlawful command influence; the so-called "DuBay hearing" has since become a well-accepted procedural tool for addressing a wide range of post-trial collateral issues
2. our decision in Ginn simply addresses the threshold aspect of the DuBay process; specifically, it focuses on the circumstances under which a DuBay hearing is required to resolve a post-trial claim that is framed by conflicting affidavits; we recognized in Ginn that Article 66(c) does not authorize a Court of Criminal Appeals to decide disputed questions of material fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; we also recognized, however, that a post-trial evidentiary hearing is not required in every case simply because an affidavit is submitted by an appellant; in the context in which Ginn was presented, we outlined six principles for determining when a factfinding DuBay hearing is required
3. Ginn’s principles are applicable to a broad range of affidavit-based, post-trial collateral claims
4. there are no problems presented by the Ginn framework that are compounded by our decision in Grostefon; our decision in Grostefon simply prescribed a rule of practice which requires, at a minimum, that when an accused specifies any error in his request for appellate representation or in some other form, the appellate defense counsel will invite the attention of the Court of Criminal Appeals to those issues; that court will review those issues and specifically acknowledge that it has considered and disposed of them; the linchpin of the Ginn framework is the recognition that a Court of Criminal Appeals' factfinding authority under Article 66(c) does not extend to deciding disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; there is nothing inherent in the Grostefon procedure that amplifies, restricts or even impacts upon Article 66(c) authority in the context of affidavit-based post-trial claims, which is the context in which Ginn arises; the fact that these claims may be assigned as error by counsel or raised by an appellant under Grostefon has no impact on the Ginn analysis

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

1. 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
2. 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
3. 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