Academy to hold hearing to clarify facts of Claxton assault case

U.S. AIR FORCE ACADEMY, Colo. -- The Air Force Academy is scheduled to hold a DuBay hearing March 12-13 to determine whether the government failed to disclose the confidential informant status of a witness in United States v. Stephan Claxton and, if so, whether that failure to disclose the witness's status was harmless beyond a reasonable doubt.

A DuBay hearing is a procedure ordered by a military appellate court, in this case the Court of Appeals for the Armed Forces, to make additional findings of fact and conclusions of law related to a specific issue not covered in the original trial.

The DuBay hearing for United States v. Claxton will be open to the public.

Capt. Sarah Carlson, an assistant professor with the Academy's Law Department, spoke to reporters March 10 about the DuBay hearing. She has experience as both a trial defense attorney and prosecutor but is not involved with the Claxton case.

"We wanted to help the members of the media and those who read or listen to their reports better understand the process and why the DuBay hearing is taking place," Carlson said. "In the classroom, I teach cadets about the military justice system. This is a perfect example of how military justice operates. It is fair, just and impartial for those who have their day in court, and it allows a person who was convicted in a court-martial to appeal a decision if he believes there were deficiencies in the process."

Eric Thomas, one of 12 witnesses who testified against former cadet Stephan Claxton in a June 2012 court-martial, was a confidential informant with the Air Force Office of Special Investigations Detachment 808 at the time he provided testimony. The AFOSI detachment is located at the Air Force Academy but independent from the Academy's chain of command.

A panel of officers convicted Claxton for wrongful sexual contact, attempting to engage in abusive sexual contact and multiple specifications of assault and sentenced him to dismissal, confinement for six months and forfeiture of all pay and allowances.

In an appeal to the Air Force Court of Criminal Appeals, Claxton's appellate defense attorney argued that the judge in the original case erred by not giving instructions regarding voluntary intoxication or that Claxton's trial counsel was ineffective for waiving the instructions.

The Air Force court dismissed this claim. In the decision affirming Claxton's conviction, Col. Karen Hecker wrote: "The appellant's own description of his interactions ... makes clear that his actions were sufficiently focused and directed to demonstrate that he could have, and did form, the required specific intent for these offenses despite his alcohol consumption. ... His intoxication level did not render him incapable of forming that intent. The observations of others corroborate that conclusion."

Claxton appealed the case to the Court of Appeals for the Armed Forces. There, his defense attorney argued that the government failed to identify Thomas as a confidential informant during his testimony, and that the failure amounted to a violation of Claxton's due process.

In order for an error to be harmless beyond a reasonable doubt, an appeals court must find that an error by the government did not violate a defendant's due process or contribute to a conviction, Carlson said.

The Armed Forces court decided during its September 2014 session that the original trial of record did not include enough information to decide the matter. It set aside the decision without setting aside the original conviction and returned the case to the Air Force Judge Advocate General, which ordered the Academy on Dec. 30 to hold the hearing no later than March 31.

The appeals court can take several actions based on its findings and conclusions from the trial and the DuBay hearing, Carlson said. It could set aside the lower court's decision, restoring Claxton to active duty and good standing; it could order a new trial; it could set aside all or part of the original sentence without affecting the conviction, or it could affirm the lower court's ruling.

Planned government witnesses include Thomas; former Special Agent Brandon Enos, who was Thomas's OSI handler; Special Agent Henry Crist II, the superintendent for the Academy's OSI detachment, and Special Agent Tyler Rube, who is assigned to AFOSI Detachment 804 at Vandenberg Air Force Base, Calif.

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