Don’t Panic!1 Rehearings and DuBays2 Are Not the End of the World
Major Grace M. W. Gallagher3
Major (MAJ) Harriet J. Potter, after reviewing numerous charge sheets and mentoring her talented but very green trial
counsel, finally has a free moment to attack the paperwork piled on her desk. She has been the Chief of Military Justice
(CMJ) for the Division for nine months and she believes that she has encountered every odd military justice issue imaginable.
As she is sorting through her inbox, she finds near the top a letter, from the Army Court of Criminal Appeals (ACCA), with a
copy of the opinion, ordering a rehearing4 in United States v. Smythe. Smythe? What is this? Unaware of the Smythe case,
MAJ Potter has a hollow feeling in her stomach. A rehearing in a case she has never heard of? What is she supposed to do?
Suddenly her uneasiness turns to panic. How can she get up to speed on this case? Where was the case tried? Where is the
record of trial? Where is the trial counsel’s file and do law enforcement investigators have the evidence? The Staff Judge
Advocate (SJA) has put MAJ Potter on his calendar for 1530, only three hours from now, to update him on military justice
issues, she now needs to brief him on how to handle this rehearing. How does she get this case to trial? Who can help her?5
Why does the Court hate her? Where can she turn to for solace?
A rehearing presents unique challenges. A rehearing usually arrives in a military justice (MJ) office with little or no
previous coordination with the appellate court or Government Appellate Division (GAD) and often triggers some degree of
panic. The appellate court’s directive, stated in the order6 or opinion,7 is to fix the problem. But how is that to be done?
Most of the MJ office personnel often have little or no knowledge of the case and little or no experience in appellate
litigation. Further complicating the task faced by the MJ office is the fact that records of trial in rehearing cases are usually
large, and the records must be thoroughly reviewed and the cases reinvestigated. Additionally, neither the witnesses nor the
evidence is readily available. Despite these challenges, the MJ office must focus on preparing for trial immediately because
the 120-day speedy trial clock has been triggered by the receipt of the record of trial and the opinion authorizing or directing
the rehearing and the clock is already ticking.8
DOUGLAS ADAMS, THE HITCHHIKER’S GUIDE TO THE GALAXY 20, in THE ULTIMATE HITCHHIKER’S GUIDE (Wings Books 1996). In the book, the phrase
“don’t panic” appears on the cover of the alien Ford Prefect’s book, The Hitchhiker’s Guide to the Galaxy. Id.
United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).
The Judge Advocate General’s Corps, U.S. Army. Presently assigned a Branch Chief at the United States Army Legal Services Agency, Defense Appellate
Division, Arlington, Va. LL.M., 2007, The Judge Advocate General’s Legal Ctr. & Sch. (TJAGLCS), Charlottesville, Va; J.D., 1997, DePaul University,
College of Law, Chicago, Ill.; B.L., 1993, The Honorable Society of King’s Inns, Dublin, Ireland; LL.B., 1991, University College Galway, Ireland; B.A.,
1989, University College Galway, Ireland. Previous assignments include: Chief of Military Justice, Fort Leavenworth, Kan. 2006–2007; Trial Counsel, Fort
Leavenworth, Kan. 2005–2006; Trial Counsel, III Corps, Fort Hood, Tex. 2005; Chief of Administrative and Operational Law, 13th Corps Support
Command, Logistical Support Area Anaconda, Balad, Iraq 2004; Trial Counsel, 13th Corps Support Command, Fort Hood, Tex. 2003; Trial Defense
Counsel, 21st Theater Support Command, Kaiserslautern, F.R.G. 2001–2003; Command Judge Advocate, 1st Armored Division, Camp Monteith, Kosovo
2000–2001; Administrative and Operational Law Attorney, 1st Armored Division, Bad Kreuznach, F.R.G. 2000; Chief of Claims, 1st Armored Division,
Bad Kreuznach, F.R.G. 1999; Legal Assistance Attorney, 1st Armored Division, Bad Kreuznach, F.R.G. 1998. Member of the bars of New York; Illinois;
District of Columbia; Republic of Ireland; England and Wales; the U.S. Army Court of Criminal Appeals, the U.S. Court of Appeals for the Armed Forces,
and the U.S. Supreme Court. This article was written to satisfy, in part, the Master of Laws degree requirements for the 56th Judge Advocate Officer
Graduate Course, TJAGLCS, Charlottesville, Va.
The term “rehearing” is used generally to refer to a retrial on the merits, a sentence rehearing or a combined rehearing. “Retrial” is used generally to refer
to a case returned by the appellate court to be retried on the merits, in whole or in par