Last Friday, the Government filed a petition for extraordinary relief and request to stay proceedings at CAAF arising from the capital case of United States v. Parker. The petition for extraordinary relief is available here. The motion to stay proceedings is available here.
In June 2007, NMCCA ordered a DuBay hearing concerning Parker’s IQ to see whether he was affected by the Supremes’ Atkins ruling. That DuBay hearing was completed in October 2009. According to Code 46’s petition for extraordinary relief:
On or around May 25, 2010, the Government and Defense were notified, by the lower court, that the lower court had been emailed two documents by the DuBay Judge Col Dunn, one of which revealed that he had engaged in ex parte communications with Government expert, Dr. Roger Moore. [The Government] immediately filed a Motion to Reopen the DuBay Hearing with the court, arguing that the proper remedy was to require the DuBay judge, Colonel Dunn, to place on the record his communications with the Government expert, provide Appellant the opportunity to voir dire the DuBay Judge, and allow Appellant the chance to present evidence on the question.
. . . .
On August 31, 2010, the DuBay Record was docketed at the lower court, and the same day the lower court summarily denied Petitioner’s motion to reopen the DuBay. . . . Instead, the lower court ordered that the Judge Advocate General remand to an appropriate convening authority for the appointment of a new DuBay hearing officer to determine “the nature and extent of the personal contact between Judge Dunn and the Government expert in this case, Dr. Roger Moore, outside the presence of the parties during the period April 2010 to August 2010.” . . . The lower court ordered that the new DuBay Hearing be conducted by September 30, 2010, and that the Record of the new DuBay hearing be delivered to the lower court by October 15, 2010.
A copy of NMCCA’s 31 August 201 order is available here.
The Government moved to reconsider and to stay or toll the deadlines that NMCCA had established. NMCCA denied the Government’s motion to reconsider in this order.
In its petition for extraordinary relief filed at CAAF, the Government requested
orders that: direct the lower court to re-open the DuBay hearing with the original DuBay Judge in-place to allow for voir dire or, absent that, direct the lower court to issue Findings of Law on the issues raised in the [Government’s] Motion for En Banc Reconsideration, which the Government believes could endanger the integrity of the DuBay proceedings below.
Here’s the heart of the Government’s argument:
To preserve the integrity of a three-year-old DuBay hearing, the proper remedy for ex parte communications is to (1)
re-open the DuBay hearing with the original DuBay judge inplace, (2) permit voir dire of the judge, (3) permit cross-examination of Dr. Moore, and (4) to permit the original judge to amend his Findings if necessary, particularly regarding credibility. The lower court’s order, making Judge Dunn a witness and not ordering cross-examination of Dr. Moore, risks obviating the possibility that Judge Dunn can reprise his role as Judge in order to amend his Findings, and avoids addressing the cross-examination issues regarding Dr. Moore. The lower court’s ruling grossly failed in addressing the merits of the legal issues underlying these concerns and the lower court should be directed to respond to these issues before this case proceeds, at risk of delaying these critical issues even further, and at risk of dooming Appellant and Petitioner to undergo an entirely new DuBay hearing on the underlying mental health issues.
The Panel’s order, and lower Court’s endorsement on September 30th, not only requires that Judge Dunn disqualify himself from further action in this case, but, should new issues arise during the Panel 2-directed DuBay proceeding, Judge Dunn will find himself unable to be voir-dired as to those issues, and unable to amend his original Findings of Fact and Conclusions of Law. Finally, the new DuBay judge arguably cannot amend the findings, because that is outside the scope of Panel 2’s mandate, because judicial deliberative testimony is prohibited, and because he did not hear the witness and assess his credibility. The result of this new DuBay risks, it seems, a later order to conduct an entirely new DuBay hearing on the underlying issues in accord with this Court’s original order of June 28, 2007.