United States v. Walters

The Court of Criminal Appeals’ decision so heavily relied on by the lead opinion to resolve this appeal was based on a credibility determination by that appellate court. 42 MJ 760, 763 (1995). It chose defense counsel’s affidavits over appellant’s. I do not agree that this is the proper way to proceed when post-trial disputes as to facts are presented. See United States v. Dykes, 38 MJ 270 (CMA 1993); United States v. McCarthy, 2 MJ 26, 28 n. 2 (CMA 1976). Moreover, I do not agree that the decision of this Court in United States v. Lewis, 42 MJ 1, 6 (1995), permits such a procedure. I would…