CAAF’s opinion in United States v. Matthews, __ M.J. ___, No. 08-0613 (C.A.A.F. July 23, 2009), is available here.  The opinion provides a detailed analysis of the judicial deliberations privilege, ultimately holding that a military judge’s testimony at a DuBay hearing about his thoughts when he deliberated in the case cannot be considered.

9 Responses to “Major new CAAF opinion”

  1. John O'Connor says:

    I think CAAF should have ordered a DuBay hearing to determine the extent to which the CCA judges considered the MJ’s DuBay testimony in deliberating on this appeal.

  2. Walters fan says:

    Well, this should resolve whether judge-alone cases with Walters issues can be sent back for clarification.

  3. Anonymous says:

    Depends, what if a judge fills out a findings worksheet and has it as part of his files?

  4. John O'Connor says:

    Walters Fan:

    I don’t think it resolves that at all. This case doesn’t prevent remand to clarify an ambiguous finding — it prohibits calling the judge as a witness as to the deliberative process. There’s no reason that judge on remand can clarify a finding, but this case precludes calling him as a witness to explain how he or she reached that intended finding.

  5. Walters fan says:

    John O’Connor, that is a distinction without a difference.

  6. Phil Cave says:

    I agree that this ruling does not disturb the Walters “judges” from being able to make a “correction” of the record to specify which “event” the accused was found guilty of.
    Partly this is so because the prudent judge would already have done that on the record, would he/she not? That’s the way I see the most recent “Walters” case. The MJ should announce on the record, just as members should be required.
    So I don’t see that as problematic in a “Walters” type remand.

  7. Anonymous says:

    Walters fan:
    How about reading M.R.E. 509. The deliberative process is taboo. Results of the deliberative process are fair game. Walters and its progeny involve ambiguous announcement of results. Whether the MCM & 5th Am allow clarification of ambiguous results is what we’re all trying to figure out. Matthews doesn’t touch that question.

  8. Voorhees says:

    The Walters fans have it. Matthews says we’re not putting our judges on the stand to talk about their decisions: overrule them if they’re wrong, affirm them if they’re not wrong, but we’re not going to call a judge as a witness to discuss their own rulings. Rekkanize.

    . . . man, I hate being right all the time.

  9. Anonymous says:

    Such insanity would never occur in State or Federal criminal cases. Furthermore, does anyone know if the Defense at trial objected to the questioning of the witness who invoked his rights on the basis that the Government could have given him immunity? Dill, 24 MJ 386 (CMA 1987).