## Facts

- Army Staff Sergeant John Diamond was accused of conspiring with Dr. Michelle Theer to murder Theer’s husband and of actually murdering the husband.
- Diamond was tried by general court-martial and was represented by detailed military defense counsel and retained civilian counsel.
- The court-martial convicted Diamond of conspiracy to commit murder and murder.
- On direct appeal, represented by new counsel, Diamond for the first time asserted an ineffective-assistance claim based on an alleged conflict of interest involving his civilian attorneys.
- Diamond alleged that Dr. Theer—his alleged co-conspirator and a person whose interests could diverge from his because either conspirator could have been the actual killer—paid the initial retainer for his civilian defense counsel.
- Diamond argued that this third-party payment created a conflict for civilian counsel that was not disclosed to the military judge and that the conflict affected counsel’s representation at trial.
- The civilian attorneys denied knowing that any money they received came from Dr. Theer.
- The Army Court of Criminal Appeals ordered a post-trial evidentiary hearing under *United States v. DuBay* to resolve factual disputes about the payment and any effect on the defense.
- The DuBay judge found that:
  - Dr. Theer made a $1,500 retainer payment to Diamond’s civilian attorneys.
  - The civilian attorneys did not know Dr. Theer was the source of that payment.
  - Dr. Theer never directed, and did not attempt to direct, counsel’s conduct of Diamond’s defense.
  - Diamond’s family paid the remaining $11,500 of the civilian attorneys’ fees.

## Issues

1. Whether Dr. Theer’s $1,500 payment toward Diamond’s civilian counsel retainer created an actual conflict of interest under the Sixth Amendment when counsel did not know she was the payor and she did not attempt to influence the representation.
2. Whether Diamond showed that any conflict adversely affected counsel’s performance so as to require relief for ineffective assistance of counsel.

## Decision

- The Army Court of Criminal Appeals held that the record, as developed at the DuBay hearing, did not establish an actual conflict of interest for Diamond’s civilian counsel.
- The court held that Diamond failed to show that counsel’s performance was adversely affected by the partial retainer payment.
- The court affirmed the findings and sentence.

## Legal Principles

- Ineffective-assistance claims ordinarily proceed under *Strickland v. Washington* (deficient performance and prejudice).
- For claimed attorney conflicts of interest, relief requires proof of an actual conflict and an adverse effect on counsel’s performance, consistent with *Cuyler v. Sullivan*.
- A third-party payment arrangement does not alone establish an actual conflict; the question is whether counsel’s loyalties were divided in fact.
- Counsel’s knowledge of the payor and any payor influence are key to whether a fee arrangement can affect loyalty or strategy.
- When the asserted conflict is raised after trial, a *DuBay* hearing may be used to make findings on disputed facts relevant to the Sixth Amendment claim.

## Conclusion

Because the DuBay findings showed that Dr. Theer’s $1,500 payment was unknown to Diamond’s civilian counsel, was not accompanied by any attempt to influence the defense, and was followed by substantial payment from Diamond’s family, the Army Court of Criminal Appeals concluded that Diamond did not prove an actual conflict that adversely affected counsel’s performance; the convictions and sentence were therefore affirmed.


United States v. Diamond, 65 M.J. 876 (2007)