Banker redux (AFCCA)

We all know to cite United States v. Banker, 60 M.J. 216, 224 (C.A.A.F. 2004), for the proposition that the military judge is to determine whether the evidence is relevant and falls into one of the listed exceptions in Mil. R. Evid. 412 -- not whether the evidence is true. Banker is back with a coram nobis petition.

The petition included, inter alia, an affidavit from Petitioner about the lingering effects of his conviction and its collateral consequences, and an affidavit from the named victim in Petitioner’s court-martial, LG. In that affidavit, LG recanted her trial testimony that supported the offenses of which Petitioner was convicted. Petitioner requests this court issue “a writ of error coram nobis setting aside his 9 February 2001 conviction, as it was based on false testimony.” Alternatively, Petitioner suggests that if the court is unable to determine LG’s credibility, it remand for a hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). 

Two judges decide a Dubay is appropriate, the third concurs in part and dissents in part.

Upon careful review of the record, we conclude a fact-finding hearing is appropriate to address two coram nobis threshold requirements, specifically Denedo factors (3) and (4). We allow that in consideration of the Denedo factors, evidence relating to LG’s veracity and Petitioner’s underlying request may be revealed. However, at this time we do not request findings of fact on the merits of Petitioner’s request for a new trial.

The dissenting judge writes

I agree with my colleagues’ decision to order further proceedings before the court may settle his petition and resolve whether his substantive claim on the merits warrants setting aside the findings and sentence. For this reason I join my colleagues in the decision to order an evidentiary hearing.

I write separately for two reasons: first, to explain why a factfinding hearing on Denedo factors (3) and (4) is not only appropriate, but that it is necessary under applicable precedent and the circumstances present here. Put differently, the court is correct to order factfinding not because we can, but because we must. For this reason I concur with ordering the DuBay1 judge to fully evaluate Denedo factors (3) and (4), and conduct factfinding on both issues. However, I dissent in part because our order does not afford latitude to the DuBay judge that would allow this court to evaluate Denedo’s second tier of analysis— that is, the question of the merits of LG’s recantation and whether she told the truth before, or is telling the truth now. It is not too soon to inquire into the veracity of LG’s trial testimony and recantation.

​Therefore, I respectfully dissent not because our order is incorrect, but because it is too narrow in scope.

The court wants answers to the following questions.

(1) The circumstances surrounding LG’s recantation(s) of her testimony from Petitioner’s court-martial, including when Petitioner learned that LG was recanting. (Denedo factor (3)).

(2) The circumstances leading to Petitioner filing his Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis in January 2022, nearly 21 years after his conviction. (Denedo factor (3)).

(3) The circumstances relating to LG’s 28 October 2021 affidavit statement that LG would have admitted her allegations were untrue to any investigator or participant to the court-martial, had she been asked directly, before Petitioner was convicted. (Denedo factor (4)).