United States v. Harvey, 64 M.J. 13 (where the question of unlawful command influence involves court members, MRE 606(b) limits the governmentís 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 memberís or any other memberís mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the memberís 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 commanderís presence in the courtroom and their relationship with him; no one could question the members, however, as to the impact of the convening authorityís presence in the courtroom on any memberís mind, emotions, or mental processes).
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 Commanderís 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 appellantís 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 appellantís 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 appellantís court-martial who attended the Commanderís Call unfairly based appellantís 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 authorityís message at the Commanderís 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. ß 837; CAAF also has held that regardless of a commanderís 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 membersí 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 Governmentís 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 memberís or any other memberís mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the memberís 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 commanderís comments, but the members may not be questioned regarding the impact of any memberís statements or the commanderís comments on any memberís 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 memberís mind or emotions as influencing a member to assent to or dissent from the findings or sentence or a memberís 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 appellantís 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 authorityís message, that judge shall set aside appellantís sentence and order a sentence rehearing).
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 commanderís comments had an adverse impact on the memberís 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 commanderís 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 observerís consideration and to whether the influence of command placed an intolerable strain on public perception of the military justice system).
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).
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).(reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system).