2006
United
States v. Harvey, 64 M.J. 13 (where the question of unlawful
command
influence involves court members, MRE 606(b) limits the government’s
opportunity to establish that the unlawful command influence had no
impact on
the proceedings; this rule prohibits inquiry into two types of
matters:
(1) any matter or statement occurring during the course of the
deliberations,
and (2) the effect of anything upon a member’s or any other member’s
mind or
emotions as influencing the member to assent to or dissent from the
findings or
sentence or concerning the member’s mental process in connection
therewith; the
rule has three exceptions to the first prohibition, one of which
permits
testimony about any matter or statement occurring during the
deliberations when
there is a question whether there was unlawful command influence; the
exceptions, however, do not permit circumvention of the second
prohibition
(inquiry into the effect on a member); in light of MRE 606(b), there
could only
be an inquiry of the members regarding what, if anything, was said
during
deliberations about the commander’s presence in the courtroom and their
relationship with him; no one could question the members, however, as
to the
impact of the convening authority’s presence in the courtroom on any
member’s
mind, emotions, or mental processes).
2003
United
States v. Dugan, 58 MJ 253 (a court member
expressed
concern in a letter to the convening authority that (1) some members
stated a
bad-conduct discharge was a "given" in this case, and (2) some
members made statements suggesting they were influenced by the message
put out
by the convening authority at his Commander’s Call; as to these
concerns, CAAF
concludes that they make a DuBay hearing necessary to determine
whether
unlawful command influence existed during the sentencing phase of
appellant’s
court-martial; under the circumstances of this case, such statements
fall
squarely within the unlawful command influence exception of Mil.R.Evid.
606(b)
and are not protected from disclosure).
(the member's letter constitutes some evidence that unlawful command
influence may have taken place during the sentencing phase of
appellant’s court-martial
where (1) it is more than mere speculation because it is detailed and
based on
her own observations; and (2) it contains assertions which, if true,
suggest
that members of appellant’s court-martial who attended the Commander’s
Call
unfairly based appellant’s sentence, at least in part, on a concern
they would
be viewed unfavorably by the convening authority (their commanding
officer) if
they did not impose a sentence harsh enough to be consistent with the
convening
authority’s message at the Commander’s Call that drug use is
incompatible with
military service).
(CAAF has long held that the use of command meetings to purposefully
influence the members in determining a court-martial sentence
constitutes
unlawful command influence in violation of Article 37, UCMJ, 10 U.S.C.
§ 837;
CAAF also has held that regardless of a commander’s intent, the mere
confluence
of the timing of such meetings with members during ongoing
courts-martials and
their subject matter dealing with court-martial sentences can require a
sentence rehearing).
(command presence in the deliberation room, whether intended by the
command
or not, chills the members’ independent judgment and deprives an
accused of his
or her constitutional right to a fair and impartial trial).
(when unlawful command influence has been directed at court members,
the
Government’s ability to persuade the DuBay judge that the
unlawful
command influence had no prejudicial impact on the court-martial is
limited by
Mil.R.Evid. 606(b); this rule prohibits inquiry into two types of
matters: (1)
any matter or statement occurring during the course of the
deliberations, and
(2) the effect of anything upon a member’s or any other member’s mind
or
emotions as influencing the member to assent to or dissent from the
findings or
sentence or concerning the member’s mental process in connection
therewith).
(Mil.R.Evid. 606(b) permits testimony about any matter or statement
occurring during the deliberations when there is a question whether
there was
unlawful command influence; this exception does not permit
circumvention of the
prohibition against inquiry into the effect on a member; thus, in this
case,
Mil.R.Evid. 606(b) permits voir dire of the members regarding
what was
said during deliberations about the commander’s comments, but the
members may
not be questioned regarding the impact of any member’s statements or
the
commander’s comments on any member’s mind, emotions, or mental
processes; in
conducting the DuBay proceedings, the military judge shall not voir
dire any member as to the effect of anything upon a member’s
mind or
emotions as influencing a member to assent to or dissent from the
findings or
sentence or a member’s mental process in connection therewith).
(if the military judge who presides at the DuBay is not
satisfied
beyond a reasonable doubt that unlawful command influence did not exist
during
the sentencing phase of appellant’s court-martial, or that one or more
members
did not exert the influence of superior rank on a junior member or
purport to
wear the mantle of the convening authority by conveying to the other
members
his or her interpretation of the convening authority’s message, that
judge
shall set aside appellant’s sentence and order a sentence rehearing).
2002
United
States v. Stoneman, 57 MJ 35 (defense counsel,
trial
counsel, and the military judge must fully question the court members
during voir
dire to determine whether a commander’s comments had an adverse
impact on
the member’s ability to render an impartial judgment - voir dire,
however, may not be enough, and witnesses may be required to testify on
the
issue of unlawful command influence).
(further proceedings were necessary to determine if the
court-martial was
tainted unlawful command influence where: (1) there was no factfinding
hearing;
(2) there was no analysis under the analytical framework for command
influence
at the trial level; (3) as a result, there are no trial-level findings
of fact
regarding the content, tone, and impact of the brigade commander’s
leadership
training session; (4) there was no way to determine if additional
witnesses
would shed light on the issue; (5) the record of trial does not provide
an
appellate court the opportunity to observe the demeanor of the court
members
with respect to any influence over them).
(the question whether there is an appearance of unlawful command
influence
is judged objectively, through the eyes of the community; demeanor of a
potentially influenced court member is a measure of actual bias, and it
is also
relevant to an objective observer’s consideration and to whether the
influence
of command placed an intolerable strain on public perception of the
military
justice system).
2001
United
States v. Baldwin, 54 MJ 308 (the use of command
meetings
to purposefully influence the members in determining a court-martial
sentence
violates Article 37, UCMJ; the mere confluence of the timing of such
meetings
with members during ongoing courts-martials and their subject matter
dealing
with court-martial sentences can require a sentence rehearing).
1999
United
States v. Roland, 50 MJ 66 (members may not be selected
or
systematically excluded solely on the basis of rank, nor may selection
process
seek to pack a court to achieve a desired result).
United
States v. Bertie, 50 MJ 489 (the intent and purpose of
the
convening authority in selecting individuals to serve as court-martial
members
is an essential factor in determining compliance with Article 25(d)(2),
UCMJ).