Judge Fumbles DuBay Hearing

The appellant’s urine specimen, from a unit drug inspection, tested positive for ecstasy. It was clear from his opening statement that the appellant would challenge the reliability of the urinalysis testing procedure and results, as well as claim innocent ingestion -- his girlfriend would testify that he had a headache and she got what she thought was aspirin from another patron of the bar they were at, and gave it to the appellant. United States v. Key, No. 04-0216/AF (C.A.A.F. Jun. 22, 2007).

The Government had SSgt L, an undercover informant, testify that the appellant appeared nervous and agitated at the urine specimen collection site and, that about 3 weeks before that he had telephoned her and invited her to use ecstasy with him in another airman’s apartment. She did not go when the AFOSI couldn’t support her.

Maj Martin, the appellant’s defense counsel “vigorously” cross-examined her, asking whether she had received any compensation from AFOSI. She said they gave her expense money on more than one occasion. Maj Martin introduced documents showing AFOSI paid her just over $200. After SSgt L had testified in 4 courts-martial, including the appellant’s, AFOSI paid SSgt L $250 “for a job well done.”

Months later, Maj Martin, then assigned as an asst SJA at another location, learned from an AFOSI agent that SSgt L had received the $250 after the trial. He challenged SSgt L's credibility at trial and at his pretrial interview with her. Eventually, the CAAF ordered affidavits and then a post-trial hearing. The judge who conducted the hearing apparently didn’t understand what she was supposed to be doing. She refused to allow Maj Martin to testify because his testimony lacked relevance, the likelihood of confusion, and apparently concerns for the attorney-client privilege.

The Air Force Court of Criminal Appeals granted the defense motion to submit Maj Martin’s affidavit and concluded that any issue as to his testifying at the DuBay hearing was thus moot. The AFCCA affirmed. In his affidavit, Maj Martin was unsure of the exact wording of questions he put to SSgt L prior to trial, but he thought they would have been sufficient to elicit that she had been originally offered an incentive payment by the AFOSI but turned it down. Of course the AFOSI claimed they never discussed other than expense payments until they gave her the money months after the appellant’s trial.

Writing for a majority of 3, Judge Stucky concluded that the military judge erred in not allowing Maj Martin to testify: (1) of course his testimony was relevant; (2) who did the judge think would be confused by his testimony? -- the appellate courts?; and, if any attorney-client privileged issues arose, the appellant could waive them.

Nevertheless, the majority concluded the error was harmless. They considered Maj Martin’s affidavit and concluded it did not provide a significant basis to impeach SSgt L as Maj Martin could not be sure what he asked her. SSgt L's affidavit and testimony at the DuBay hearing were the only evidence she even knew there was such a thing as incentive payments and there was absolutely no evidence she ever took an incentive payment before trial.

Judge Ryan, joined by Chief Judge Effron, dissented. They want the case sent back so that the DuBay hearing originally ordered could be done correctly. It appears the court-martial was held in 2001. Although I can understand Judge Ryan's position, I can't imagine a DuBay hearing some six years after the fact would render any reliable evidence of what happened in 2001. Would Maj Martin be able to remember more now than when he composed his affidavit? I doubt it.