The Key question

In United States v. Key, __ M.J. ___, No. 04-0216/AF (C.A.A.F. June 22, 2007), all five CAAF judges agree that a military judge erred while conducting a DuBay hearing. The purpose of the DuBay hearing was to explore evidence that a government undercover informant had been untruthful when she denied knowing that she might receive reward money for her cooperation. At the DuBay hearing, the defense sought to introduce the testimony of the original trial defense counsel, who would have recounted facts from his interview of the informant. The military judge said no. Wrong, says CAAF. But not reversible, ruled a three-judge majority of Judges Stucky, Baker, and Erdmann. Judge Ryan, joined by Chief Judge Effron, disagreed, setting out the significance of the defense counsel's potential testimony.

The disagreement over prejudice is interesting, but it ultimately affects a universe of one person: Airman First Class Key. While I thought the dissent's argument was more persuasive, the important point for the development of the law is that CAAF established the precedent that the military judge erred by failing to allow the trial defense counsel to take the stand at the DuBay hearing.