United States v. Diamond

Army Staff Sergeant John Diamond (defendant) was accused of conspiring with Dr. Michelle Theer to murder Theer’s husband and of actually murdering the husband. During the court-martial, Diamond was represented by military and civilian counsel. Diamond was convicted and appealed. On appeal, for the first time, Diamond claimed that his alleged coconspirator, Theer, had paid his civilian attorneys’ initial retainer fee. Because either alleged conspirator could have performed the murder, Diamond’s and Theer’s interests conflicted with each other. Diamond argued that Theer’s payment created a conflict of interest for his civilian attorneys, which the attorneys had not disclosed to the court. Diamond further argued that this conflict caused the attorneys to provide him with ineffective assistance of counsel during the court-martial proceedings. The civilian attorneys denied any knowledge of receiving a fee payment from Theer. The Court of Criminal Appeals ordered a DuBay hearing to gather evidence about the alleged payment. The DuBay judge determined that (1) Theer had made a $1,500 retainer payment to the civilian attorneys, (2) the attorneys had not known that Theer was the source of the payment, (3) Theer never directed the attorneys to conduct their representation of Diamond in any particular way, and (4) Diamond’s family had paid the remaining $11,500 of the civilian attorneys’ fees in the case.