Through surrogate witnesses
Representing Guilty Clients: How do defense lawyers sleep at night?
United States v. Yerich, 47 M.J. 615 (A. Ct. Crim. App. 1997). Testimony from a government witness (SFC) that the accused had no rehabilitative potential in the military did not constitute unlawful command influence. Court rejects argument that SFC’s testimony was adopted, and therefore attributable to, the commanding officer.
Through improper rehabilitation evidence in sentencing
United States v. Cherry, 31 M.J. 1, 5 (C.M.A. 1990); United States v. Ohrt, 28 M.J. One of the problems (of many) with having a commander say, “No rehabilitation potential in the military” is that the commander has essentially told the panel what he or she thinks is the appropriate punishment: one that includes a punitive discharge.
Through the terms of a co-accused’s agreement with the convening authority
United States v. Schnitzer, 44 M.J. 380 (C.A.A.F 1996). Disclosure, during members trial, of the terms of co-accused’s pretrial agreement does not per se bring the CA into the courtroom, provided it is otherwise admitted for a valid purpose.