When we last visited United States v. Lee, CAAF was remanding the case for a DuBay hearing to look into potential conflicts arising from a Marine judge advocate’s simultaneous service as a defense counsel in Capt Lee’s case and a trial counsel serving under Capt Lee’s prosecutor in other cases. United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008).
After a DuBay hearing was held 12-13 January and 13 February 2009, the case returned to NMCCA. In an unpublished opinion issue today, NMCCA kick the case back for another DuBay hearing. United States v. Lee, No. NMCCA 200600543 (N-M. Ct. Crim. App. Nov. 10, 2009). Senior Judge Vincent wrote for a unanimous panel. I’ve posted a copy here.
While the court found a specific problem with the DuBay hearing’s handling of one of the questions it was supposed to address, the principal holding is that the military judge who conducted the DuBay hearing erred by denying a challenge for cause lodged against him. NMCCA concluded that the DuBay hearing’s military judge “possess[ed]personal knowledge as to evidentiary facts in dispute during the DuBay hearing,” thus requiring his disqualification. Id., slip op. at 6.