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Gentlemen,
NMCCA's Lee opinion does, indeed, include helpful language on the
disqualification issue:
On the facts before us, we find that LtCol Ward did indeed possess personal
knowledge as to evidentiary facts in dispute during the DuBay hearing. First,
the record of the DuBay hearing demonstrates that LtCol Ward assumed duties as
the military justice officer of the LSSS Camp Lejeune on 25 June 2005. This was
the command which was processing the appellantâs case and to which Captain Reh
was permanently assigned while deployed. Therefore, he was in a position to
obtain detailed and exclusive knowledge of Captain Rehâs trial counsel actions
between 25 June and 8 September 2005.
Second, since LtCol Ward was not a military judge, much less detailed to the present case, at the time of his service as the military justice officer, any knowledge he possessed or obtained regarding Captain Rehâs trial counsel actions between 25 June and 8 September 2005 was derived in a purely extra-judicial capacity. Third, Captain Rehâs trial counsel actions between 25 June and 8 September 2005 were, and remain, evidentiary facts in dispute at the DuBay hearing based on CAAFâs broad fourth factual issue. Therefore, we find that LtCol Ward was mandatorily disqualified from serving as the military judge at the DuBay hearing under R.C.M. 902(b)(1). See Allen, 31 M.J. at 602. The full opinion is available here:
Semper Fi,
Dwight |