By the commander physically being in the courtroom
United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006). During the government’s closing argument on findings, the convening authority was present in the courtroom wearing a flight suit. Based on the apparent recognition of the convening authority by several panel members, defense counsel moved for a mistrial, which was denied by the military judge. CAAF set aside the findings and sentence without prejudice, but limited the approved sentence at any rehearing to a punitive discharge. The military judge is the “last sentinel” in the trial process to protect a court- martial from UCI.
The trial developments in this case raised “some evidence” of unlawful command influence and the military judge failed to inquire adequately into the issue. Specifically, the convening authority was present in the courtroom wearing a flight suit when the government’s argument characterized appellant’s conduct as a threat to the aviation community; the senior member of the panel was a subordinate member of the convening authority’s command (and the subject of an unsuccessful challenge for cause); and there was some evidence that the panel was watching the convening authority during argument. Further, the military judge failed to then conduct Biagase analysis. CAAF noted that convening authority’s are not barred from a attending a court-martial, “But as this case illustrates, the presence of the convening authority at a court-martial may raise issues.”)
United States v. Rosser, 6 M.J. 267 (C.M.A. 1979). The military judge abused his discretion in denying mistrial where accuser’s company commander’s presence throughout proceedings was “ubiquitous” and commander engaged in “patent meddling in the proceedings.”
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While it is not per se UCI for the commander to be in the courtroom, if the defense raises the issue, it is fair to say that the commander being in the courtroom will per se satisfy the first Biagase factor. The burden will now shift to the government to prove beyond a reasonable doubt that the commander being in the courtroom did not constitute UCI, or if it did, that it did not influence the proceeding. So, the ultimate question is, if the commander wants to be in the courtroom (or if the SJA wants to be in the courtroom), is it worth it? In Harvey, the court stated: “We share [the responsibility to guard against UCI] with military commanders, staff judge advocates, military judges, and others involved in the administration of military justice. Fulfilling this responsibility is fundamental to fostering public confidence in the actual and apparent fairness of our system of justice.” Harvey, 64 M.J. at 17. Probably the best solution is to find a way to observe the court-martial without physically being in the courtroom, or save observation moments for contested judge-alone cases.