United States v. Flores-Santos

76 M.J. 42, 2016 CAAF LEXIS 1029

Opinion

CCA 20140066. On consideration of Appellant’s motion to attach exhibits and petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is denied, and that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE WAS DISQUALIFIED FROM PRESIDING IN APPELLANT’S CASE WHERE HE PREVIOUSLY SERVED AS CHIEF OF JUSTICE AND SUPERVISED ALL PROSECUTIONS FOR APPELLANT’S UNIT, AND HE FAILED TO DISCLOSE THE FULL EXTENT OF HIS RESPONSIBILITIES AND ACTIONS FROM HIS PRIOR POSITION, INCLUDING CONSULTING ON CASES AT THE PRE-PREFERRAL AND INVESTIGATION STAGE.

The decision of the United States Army Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Army for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the matter underlying the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.