Here’s a link to AFCCA’s order today in United States v. Hughes, No. ACM 37958.  AFCCA ordered a factfinding hearing to explore whether A1C Hughes chose trial by military judge alone based on certain ex parte comments that the presiding military judge made to a defense expert psychiatric consultant.

The military judge also served as the deposition officer to conduct a deposition of the alleged victim in an Article 120 case. 

On appeal, the accused submitted an affidavit stating, in part:

My lawyers told [me] about numerous comments the judge made about the victim those remarks influenced my decision along with the fact that the judge used to be a nurse and probably new about [A1C DFJ]’s mental illnesses.

One of the last things that Judge [Eflein] stated before we started court was “people with bi-polar are weird” – then we rolled into court. She had repeatedly made comments like this over the course of the proceedings. She and Rath talked at the airport and impressions we got were the same. In fact, Rath said later to us that he felt she wanted us to go judge alone so she could put her “nurse” hat and use the training w/respect to the bi-polarism. Rath later said if we went judge alone and he was found guilty, then she “baited” us the whole time. Frankly, that’s the same opinion I have. Unfortunately, I didn’t write all the comments she had made (another one was “I wonder if him having sex with her made her cross-eyed” (or words to this effect).

Dr. Rath had a full blow conversation with her about the victim. Rath stated “It’s as if she’s begging you to go judge alone. But if she finds him G, she will have baited him into doing it” (or words to this effect).

. . . .

. . . My lawyers didn’t fully explain the law or meaning of me going judge alone. They told me that they’d had off-the record talks with the judge after the deposition Major (Maj) Meginley, lead trial defense counsel, submitted an affidavit which included, in pertinent part, the following:
During our pretrial consultation with AB Hughes, we [trial defense counsel, Dr. Rath, and the appellant] believed that being tried by officer members, or potentially officer and enlisted members, was the best idea. However, in the days leading up to trial, we began to discuss the possibility of going military judge alone.

. . . During pre-trial preparations, Judge Eflein made some out of court statements regarding her awareness of the [victim’s] diagnosed mental health issues.

. . . Just before trial, Judge Eflein had said something to the effect of, “Can we all agree that people with bi-polar disorder are weird?” This was just after the deposition around March 19, 2011, in the presence of both defense and trial counsel, in an MRE 802 meeting. It is also my understanding that prior to trial, Judge Eflein made statements to Dr. Rath concerning the issues of the case and the [victim’s] credibility. In discussing the comments with Dr. Rath, he mentioned the things she was saying surprised him and that her opinion of the [victim] and the case generally appeared to be in our favor.

. . . .

[Later] Dr. Rath changed his opinion and felt we should go with members.

The lead trial defense counsel also provided an affidavit, stating:

During our pretrial consultation with AB Hughes, we [trial defense counsel, Dr. Rath, and the appellant] believed that being tried by officer members, or potentially officer and enlisted members, was the best idea. However, in the days leading up to trial, we began to discuss the possibility of going military judge alone.

. . . During pre-trial preparations, Judge Eflein made some out of court statements regarding her awareness of the [victim’s] diagnosed mental health issues.

. . . Just before trial, Judge Eflein had said something to the effect of, “Can we all agree that people with bi-polar disorder are weird?” This was just after the deposition around March 19, 2011, in the presence of both defense and trial counsel, in an MRE 802 meeting. It is also my understanding that prior to trial, Judge Eflein made statements to Dr. Rath concerning the issues of the case and the [victim’s] credibility. In discussing the comments with Dr. Rath, he mentioned the things she was saying surprised him and that her opinion of the [victim] and the case generally appeared to be in our favor.

. . . .

[Later] Dr. Rath changed his opinion and felt we should go with members.

According to the defense brief, after the trial, the military judge told the trial defense counsel that she was “bothered by the decision to go judge alone” and stated that she hoped that decision had nothing to do with her pretrial comments.

AFCCA observes that “Trial defense counsels’ post-trial affidavits corroborate that [ex parte statements in which the military judge expressed doubt about the victim’s credibility] were made but refute the appellant’s assertion that they based their forum selection advice to the appellant on such statements.”  AFCCA ordered a factfinding hearing at which the presiding judge will answer, at a minimum, these questions:

1) What actions did Col Eflein take during the deposition of A1C DFJ? Why didn’t she discuss her role as a deposition officer on the record?

2) What, if any, pre-trial comments did Col Eflein make to trial defense counsel and/or government trial counsel regarding A1C DFJ?

3) What, if any, pre-trial comments did Col Eflein make to Dr. Rath regarding A1C DFJ?

4) Assuming Col Eflein made pre-trial comments to trial defense counsel and/or Dr. Rath, why were they made?

5) Assuming Col Eflein made pre-trial comments to trial defense counsel and/or Dr. Rath, why didn’t she discuss the comments on the record?

6) When did trial defense counsel decide to change their advice regarding forum selection? Was this decision made after Col Eflein’s remarks concerning A1C DFJ’s credibility?

7) Assuming Col Eflein made pre-trial comments to trial defense counsel or Dr. Rath regarding the credibility of A1C DFJ, or any other witness in the case, what impact did these comments have on the trial defense counsel’s ultimate recommendation to the appellant on forum selection? What did the trial defense counsel tell the appellant concerning these statements? What did the appellant state in response?

8) Did Dr. Rath change his opinion on whether to advise that the appellant be tried by military judge, vice officer members, as a result of comments he received from Col Eflein? If so, why did he change his opinion?

9) What post-trial conversations did Col Eflein have with Maj Meginley and/or Capt Delph regarding forum selection? What was said during that period?

10) Did Col Eflein make comments to trial defense counsel to the effect that she was “bothered by the decision to go judge alone” and that “she hoped it had nothing to do with her pretrial comments?” If so, why?

11) Did Col Eflein make any other comments, either pre-trial or post-trial concerning the credibility of any witness other than A1C DFJ in this case? If so, what were they?

3 Responses to “AFCCA orders DuBay hearing to explore whether accused chose trial by military judge alone based on the military judge’s ex parte comments to a defense expert consultant”

  1. k fischer says:

    I don’t know what to make of the issues in this case other than to say they are interesting.  Anyone buy the statement that the defense did not decide to go judge alone based on the military judge’s comments about the accuser?  
     
    I’m assuming that the trial counsel was present for the statements the judge made about the accuser after the deposition.  Why didn’t the trial counsel request that the Judge recuse herself?  If they heard the comments, it’s curious that they did not request a new military judge, i.e. were they privy to statements that led them to believe that she would convict?  
     
    If the Government wasn’t privy to the judge’s comments, then did the Defense have a duty to disclose the comments to the Government before forum selection?
     
    And, why didn’t the judge sua sponte recuse herself after being the deposition officer?  Would a court martial panel member be permitted to sit on the court martial if he or she was the deposition officer?   Moreover, would the panel member be permitted to sit on the court martial after having a conversation with the Government’s expert witness regarding the mental status of the accuser?  Had she acquitted the appellant and the accuser found out about the pretrial statements, how would the fairness of the trial be perceived by those who think the military is soft on sexual assault crimes?
     
    While I think the judge should have recused herself sua sponte, why does the Appellant get to complain about it now?  It was his trial strategy to use the ex parte statements in his analysis when he decided to go military judge alone.  It’s almost like a Defendant paying off a juror, then complaining that he didn’t get a fair trial because the paid off juror didn’t vote for an acquittal.

  2. Atticus says:

    I agree with k fischer. What are the grounds for complaint? You were tricked?

  3. Neuma says:

    The military judge should have recused herself from this case to ensure the integrity of this case. She is held to a higher standard. The accused was apparently acting in accordance with his defense attorneys’ advice. The accuse was led to believe that going judge alone was in his best interest, especially since he was innocent and there was no evidence to warrant a conviction, other than the judge’s ambitions and political pressure. The judge should have done the right thing and recused herself and the defense attorneys should not have mislead the accused to believe the judge’s statement would ensure a guaranteed acquittal. Think about this: how many of you would have done the same thing the accused did, knowing that you were innocent of the charges against him (and not knowing military law)? As a previous law enforcer, I can assure you that this case would never have been tried in a civilian court. I am currently studying law and I truly do not understand military law. It is broken and not based on justice. It seems to be about politics and ambitions. Justice is not blind in the military. I just hope this young man receives justice.