On Wednesday, ACCA issued this unpublished opinion reaffirming the conviction and LWOP sentence of Staff Sergeant John M. Diamond. United States v. Diamond, No. ARMY 20010761 (A. Ct. Crim. App. May 26, 2010).
After ACCA initially affirmed in a published decision, 65 M.J. 876, CAAF granted Staff Sergeant Diamond’s petition and summarily remanded the case for ACCA to consider this issue: “WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT’S CIVILIAN DEFENSE COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT.” United States v. Diamond, 67 M.J. 249 (C.A.A.F. 2009) (summary disposition).
ACCA ultimately remanded for a DuBay hearing on the questions. In its new decision, ACCA concludes that Dr. Michelle Theer did provide $1,500 for the retainer fee for Diamond’s civilian counsel, who were defending him for killing Dr. Theer’s husband, Air Force Captain Frank M. Theer. ACCA also concludes that the conflict wasn’t disclosed to the court-martial. But, significantly, ACCA finds that the civilian counsel never knew that Dr. Theer was the source of the money for the retainer fee. Thus the attorneys’ loyalty wasn’t divided between Diamond and Dr. Theer, who was convicted of first-degree murder by a North Carolina state court and is doing a life sentence. ACCA also indicates that Diamond’s family paid the remaining attorneys’ fees of $11,500. (Unfortunately, the two appendices refererenced by the decision aren’t available in the online version of ACCA’s opinion.)
Judge Baime wrote for a unanimous panel.