instances, a particular class of cases.

During its last session, the Court had occasion to consider and reject as improper a pretrial pamphlet which exceeded the "limits of permissible pre-trial advice and establish (ed) erroneous statements that could reasonably influence the court. "55 Similarly, in Littrice,56 a letter from headquarters was unanimously construed as substantively coercive of recipient court members in view of the fact that the document's reference to fitness reports immediately followed a recitation of an Army departmental policy demanding the discharge of convicted larcenists. Illustrative of the second category of improper pre-trial subject matter is United States v. Hunter 57 where a harmonious court perfunctorily reversed a conviction when it was revealed that the convening authority had conducted a pre-trial conference with court members during which previous offenses committed by the accused were discussed. Likewise, in United States v. Olson,58 Judge Ferguson, joining with the Chief Judge, labeled as excessive a command directive and lecture on the ground that the subject matter of the communications related to the precise type of military offense with which the accused was charged. In reaching his conclusion, Judge Ferguson commented in passing that:

What a few commanders fail to realize, however, is that the scales always become loaded against justice when lectures attended by court members involve extended discussion of offenses identical or closely related to those for which an accused is shortly to be tried . . . In such instances, the respect for command authority ingrained in the average officer predisposes him to judge the accused in the light of the needs of the service rather than impartially to consider the charges and the evidence-a situation which may as adversely affect discipline and morale as the offenses which originally led to pretrial lectures."

Even though the USCMA continues to protest that the subject matter of a pre-trial communication is essentially determinative of the issue of permissibility, a perusal of the Court's opinions prompts the observation that certain external factors are, nonetheless, permitted a prominent role in the decision making process. Consequently, it would be extremely misleading to conclude that the high tribunal ignores all considerations except the text of a contested pretrial discourse in assessing its legality. Indeed, certain external or nonsubstantive factors have, in almost every case, played a significant role

55. United States v. Johnson, supra note 48.

56. United States v. Littrice, supra note 38.

57. 3 USCMA 497, 13 CMR 53 (1953).

58. 11 USCMA 286, 29 CMR 102 (1960). 59. Id. at 289, 29 CMR at 105.

in the selection and isolation of objectionable communications from permissible command dialogue. For instance, on various occasions a majority of the Court has relied upon one or more of the following considerations in an attempt to sustain or resist an allegation of command control: (1) the timing of the contested communication; 60 (2) the recipients of the contested communication; 61 (3) the promulgating authority of the contested communication; 62 (4) the method of communication; 6 and (5) the effect of the contested communication upon the court members.64

While the purpose served by these so-called external factors may vary somewhat from opinion to opinion, it is generally safe to say that a consideration of matters dehors the text of a contested communication normally is undertaken by the Court in order to weigh the probability of the existence of prejudice-i.e., whether a "fair risk" exists that the court members have been compromised by a pre-trial communication the substance of which is considered potentially corrupting. This proposition was set in bold relief when Judge Kilday, after observing that "the mere existence of an epistle setting forth erroneous principles is not itself a decisive factor," concluded that the potentially offensive document therein under consideration could not have had a prejudicial impact upon the court inasmuch as (1) the letter was prepared by a staff judge advocate of a command inferior to that of the convening authority; and (2) the document was distributed twenty-one months prior to the accused's trial.65 Similarly, in United States v. Zagar, the USCMA considered a staff judge advocate's lecture the disputed substance of which would have been considered nonprejudicial in the absence of the following external factors: (1) the fact that the lecture was delivered on the day prior to the accused's trial; (2) the fact that the lecture was addressed solely to court members of a newly appointed courtmartial; and (3) the fact that the officer furnishing the lecture was of a superior rank to the court members and, as a staff member, could reasonably have been considered a conduit for

66

60. See United States v. Zagar, 5 USCMA 410, 18 CMR 34 (1955); United States v. Ferguson, supra note 48.

61. See United States v. Littrice, supra note 38. But see, United States v. Isbell, supra note 54.

62. See, e.g., United States v. Kitchens, supra note 48. 63. See cases cited note 61 supra.

64. See United States v. Davis, supra note 46 (court members' declarations of impartiality were considered); United States v. Olson, supra note 58 at 294, 29 CMR at 110 (Latimer, J. dissenting).

65. United States v. Wood, 13 USCMA 217, 224, 32 CMR 217, 224 (1962).

66. Supra note 60.

the desires of the convening authority.

One of the more confusingly applied external factors frequently employed by the Court in its attempt to divine the impact of a command utterance pregnant with possible prejudice is the testimony of the court members themselves concerning their reaction to the objectionable material. For instance, in Navarre,67 Judge Brosman concluded that protestations of impartiality by challenged court members are not binding upon the Court albeit genuinely delivered in good faith. "In the area of 'command' control Congress was rightly concerned not only with conscious and recognizable influences, but with unconscious ones as well." 68 On the other hand, self-assessments concerning the presence of bias or prejudice have been cited in other instances as significant factors contributing to, if not compelling, the conclusion that a courtmartial had not been deprived of impartiality by a command lecture or directive.69

Although this contradiction may perhaps be resolved through an extended analysis of the pertinent USCMA cases, suffice it to say at this juncture that of all the so-called external factors heretofore employed by the Court, declarations of impartiality are most tailored to the needs of judicial opportunism. In most cases, if not all, the government is able to elicit a declaration of impartiality from contested court members; consequently, this circumstance is always available to the jurist who, having already determined the crucial issue of permissibility, is searching either for evidential support which will strengthen his conclusions or for an opposing argument susceptible of simple refutation.

As might be expected, the apparent inconsistency created (1) by judicial assurances to the effect that only the subject matter of contested pre-trial communications is accorded primary judicial scrutiny, and (2) by the USCMA's conflicting propensity to utilize considerations outside a challenged text, has not passed unnoticed. In one series of decisions Judge Brosman took his brothers to task for deviating from their announced policy concerning cases involving pre-trial command control over court members. In the first pertinent opinion, a majority of the Court concluded that even though a pre-trial dialogue between command and the members of a military court is not prohibited per se by the UCMJ, when excerpts therefrom containing both an expression of department policy and a reference to fitness re

67. United States v. Navarre, supra note 53.

68. Id. at 41, 17 CMR at 41.

69. See cases cited note 64 supra.

ports are personally read to prospective court members by the convening authority, the subject matter of the communication constitutes an unwarranted interference with the trial court.70 Subsequently, the Court was afforded an opportunity to consider the identical missive under circumstances where it had not been read personally to the court members but rather had been perused individually by certain of the triers of fact." In this case, the Court concluded that the communication was inoffensive. inoffensive. In a lucidly reasoned dissenting opinion, Judge Brosman raised, but did not answer, the question of whether a meaningful distinction could be found between the instant decision and its predecessor in view of the fact that the Court was committed to a philosophy that there is nothing per se objectionable about a convening authority personally addressing a court-martial of his own creation, that it is what the convening authority says and does vis a vis court members that is controlling. Finally, in Navarre, Judge Brosman abandoned all reticence. Citing the Court's initial opinion concerning a communication involving both policy and fitness reports, he emphatically stated that even though the instant communication took place two months prior to trial, as opposed to the immediately preceding day, a distinction founded upon the basis of such a nonsubstantive factor was specious. If the subject matter of command discourse is considered the focal point for judicial emphasis, the "timing" of the command intrusion becomes irrelevant. In any event, notwithstanding Judge Brosman's direct challenge, a majority of the USCMA continues to intermingle considerations of substance and external factors. Perhaps such apparent inconsistency can be tolerated, however, if the ultimate result is the creation of a more successful analytical tool for the business of discovering, isolating, and condemning impermissible forms of pre-trial command discourse.

Before turning to a discussion of command intrusions directly into the deliberations of a court-martial in session, it would be advisable to note with respect to pre-trial communications that a slightly different approach to these cases seems to have emerged since the arrival of Judge Kilday to the bench in 1961. Previously, the Court appeared content merely to determine, (1) whether a contested communication was potentially erroneous, coercive, or unnecessarily related to a particular case; and (2) the prob

70. United States v. Littrice, supra note 38. 71. United States v. Isbell, supra note 54. 72. United States v. Navarre, supra note 53.

73

able impact thereof upon the court members by resorting to external factors. However, in United States v. Davis, Judge Kilday, considering his first case involving pre-trial command control, exhibited a willingness to examine the actual actions of the court members in an attempt to answer the question of probable prejudice. In other words, with Davis, the USCMA hinted that although the substance of a communication may be considered potentially objectionable, the "fair risk" of prejudice may be diluted to insignificance by judicial actions of the court members exhibiting impartiality with respect to the accused-i.e., (1) an acquittal with regard to certain, if not all, offenses charged; and (2) a lenient sentence when viewed in light of the maximum permissible punishment for the offenses charged.

What began more as a suggestion than a firm commitment in Davis, however, became an important force in the resolution of United States V. Johnson. With the Chief Judge authoring the opinion with the concurrence of Judge Kilday, it was stated that even though the contested communication was erroneous:

The appearance, or the existence, of command influence provides a presumption of prejudice; but the presumption is rebuttable. Consequently, if the record of trial demonstrates that the court members completely disregarded the improper matter, there is no reason to conclude that the accused was deprived of a fair trial.”

Although rejecting as insufficient rebuttal assurances by court members to the effect that they were impartial, the court allowed that "the determination made by the court-martial may show affirmatively and incontrovertibly that improper matter did not harm the accused." Considering the sentence imposed by the courtnartial, a majority of the Court concluded that the punishment awarded, albeit considerably ess severe than that which was permissible inder the law, was not sufficiently lenient as to ebut the presumption of prejudice.

The extent to which the present Court will ontinue to indulge this recently developed enchant for examining the actions of the court nembers is unknown. However, it may be wise o assume that such a consideration will enjoy n the future at least as significant a role in the etermination of permissible pre-trial dialogue s the other external factors heretofore iscussed.

Inasmuch as command intercourse with court 12 USCMA 576, 31 CMR 162 (1961).

. 14 USCMA 548, 34 CMR 328 (1964).

. Id. at 551, 34 CMR at 331.

members while a trial is in progress seems inherently more fraught with possible danger than discussions conducted prior to trial, the USCMA has been extremely responsive to allegations of illegal command control in this area. Thus, although the Court, without more, has held that neither the mere presence of a staff judge advocate within the court room 76 nor the bare argument by a trial counsel upon the sentence " constitutes an impermissible interference with a court-martial, the USCMA has condemned uniformly all efforts to expose an operating courtmartial to command or departmental policy pronouncements purporting to bear any indicia of officiality. For example, in United States v. LaRue, an accused was charged with false enlistment and it was determined that a law officer committed prejudicial error by admitting in evidence certain documents bearing administrative conclusions concerning the fraudulent character of the accused's enlistment. Similarly, in United States v. Leggio," the argument of trial counsel after findings was declared improper insofar as it referred to an official message advising that all "troublemakers" in certain rates, including that enjoyed by the accused, should be eliminated from the service.

78

Perhaps the most interesting and informative decisions concerning the injection of command policy into the proceedings of a functioning court-martial involve SecNav Instruction 5815.2A of 12 March 1956 pertaining to the retention of persons in the naval service who have been convicted of offenses involving moral turpitude, including larceny and related crimes.80 In United States v. Fowle,81 the Court was asked for the first time to consider the propriety of apprising court members during a trial of the aforementioned Navy departmental policy encouraging the elimination of thieves from the naval community. While recognizing that a policy directive may be promulgated by a military department in order "to improve discipline," the USCMA cautioned that "it must not be used as leverage to compel a certain result" during a trial by court-martial.82 Even though the Court expressly declined to state in Fowle

76. United States v. Self, 3 USCMA 568, 13 CMR 124 (1953). 77. United States v. Olson, 7 USCMA 242, 22 CMR 32 (1956). 78. 11 USCMA 470, 29 CMR 286 (1960). Accord, United States v. Coffield, 10 USCMA 77, 27 CMR 151 (1958).

79. 12 USCMA 8, 30 CMR 8 (1960). See United States v. Allen, 11 USCMA 539, 29 CMR 355 (1960).

80. For decisions involving improper use of other departmental policies see United States v. Choate, 9 USCMA 680, 26 CMR 460 (1958) (sentencing policy in naval supplement to MCM) and United States v. Walinch, 8 USCMA 3, 23 CMR 227 (1957) (SecNav Instruction 1620.1 of 5 June 1953).

81. 7 USCMA 349, 22 CMR 139 (1956). 82. Id. at 351, 22 CMR at 141.

whether the exposure of court members to such a policy declaration was, as a matter of law, prejudicial, it was observed that:

Reasonable men must conclude that once the Secretary of a service enters into the restricted arena of the court room, whether the members of the court are conscious thereof or not, he is bound to exert some influence over them. A trial must be kept free from substantial doubt with respect to fairness and impartiality. . . . This appearance of impartiality cannot be maintained in a trial unless the members of the court are left unencumbered from powerful external influences.83

One year later, however, the same majority of the Court combined to reverse a similar case where the trial counsel had merely directed the court members' attention to SecNav Instruction 5815.2A without reading it or introducing it in evidence.84 On this occasion, Judge Ferguson firmly expressed the proposition that:

There is only one reason that the commander's policies are brought to the attention of the court. That reason is to influence the members in their decision of the case before it, and this is error to the prejudice of the accused. Reading or alluding to the Secretary of the Navy's instructions to the court is tantamount to calling him to the stand and asking what instructions he has with regard to the case before the court. No one familiar with the principles of the Anglo-Saxon jury system would suggest that this is permissible.85

On the strength of this two decision, it can be observed that the Court has developed, with respect to policy communications between command and a court-martial in session, a type of per se doctrine that is unknown in the area of pre-trial command control. In the Estrada case, a majority of the USCMA opined that the mere exposure of court members to command or departmental policies was presumptively prejudicial. This analysis is fortified by the opinion fashioned by Judge Ferguson in United States v. Holmes,86 wherein the Court perfunctorily rejected as erroneous and prejudicial the advice of a staff legal officer to the effect that although departmental policies could not control the deliberations of court members, such declarations could be considered by, and thus influence, the members within closed sessions. Such paternal protection of the trial court by the USCMA in this regard will become even more impressive when an examination is made of the Court's position with regard to departmental policies and

83. Id. at 352, 22 CMR at 142.

84. United States v. Estrada, 7 USCMA 635, 23 CMR 99 (1957). Accord, United States v. Rinehart, 8 USCMA 402, 24 CMR 212 (1957) (MCM, 1951, statement concerning retention of persons guilty of crimes involving moral turpitude is considered). 85. Id. at 639, 23 CMR at 103.

86. 7 USCMA 642, 23 CMR 106 (1957).

the effect thereof upon convening authorities.

In addition to instances where command more or less inadvertently has compromised a courtmartial by injecting official policies into the court's deliberations, certain enterprising commanders have attempted directly to control the proceedings of a military tribunal by adjusting its composition or by regulating its procedures. For instance, when a convening authority appointed a new court member after arraignment but prior to the deliberations on findings, the Court determined that, "good cause" for such action having not been established, unlawful command control was present.87 Similarly, illegal command influence was discovered when a convening authority directed a law officer to proceed with a trial even though the latter properly had ordered a continuance for the benefit of the accused.88

Notwithstanding the ingenuity of certain military commanders, it can be stated with considerable confidence that command efforts to communicate with a court-martial after it has commenced hearing cases usually will not be tolerated by the USCMA and such attempts will be accorded the measure of respect they normally deserve-i.e., a brief and curt condemnation coupled with well-chosen admonitory expletives from the high court. As stated previously, such judicial sensitivity in this area is understandable when it is remembered that of all areas of improper command influence, efforts to compromise an operating court-martial are at once the least subtle and most likely to instill prejudice and partiality.

When considering the final category of odious command influence set forth at the outset-i.e., command interference with judicial personnel other than court members either before or after trial-the most obvious conclusion that may be drawn with regard to the prevailing judicial temperament is that the Court is far more tolerant of suspicious policy directives and departmental communiques at this level than when it is considering possible challenges to the impartiality of court members. This unusual tolerance is demonstrated pointedly by decisions wherein it has been alleged that the discretion of

87. United States v. Whitley, 5 USCMA 786, 19 CMR 82 (1955). But see, United States v. Grow, 3 USCMA 77, 11 CMR 77 (1953).

88. United States v. Knudson, 4 USCMA 587, 16 CMR 161 (1954). 89. See United States v. McCann, 8 USCMA 675, 25 CMR 179 (1958) (Convening Authority holds "make-up" lecture on military justice for court members after arraignment of accused); United States v. Guest, 3 USCMA 147, 11 CMR 147 (1953) (staff judge advocate provides president with board of review opinion on basis of which the latter subsequently challenged law officer's ruling sustaining a motion for a finding of not guilty).

90

a convening authority has been curtailed by the latter's consideration of certain restrictive departmental policies. For example, in United States v. Doherty, the Court deliberated upon the implications attending the consideration by a convening authority of SecNav Instruction 1620.1 of 5 June 1953 pertaining to the administrative removal of sexual deviates from the naval service. It was contended in this case that those portions of the Instruction expressing a departmental policy against the retention of known homosexuals had the effect of unlawfully limiting the discretion of the convening authority with respect to his initial action on the record of trial. Although the Court determined that, in fact, SecNav Instruction 1620.1 did not represent an inviolable command to judicial reviewing authorities, but rather, obtained only during administrative proceedings, it was recognized that a convening authority might not have noted this rather subtle, yet important, distinction. Consequently, being of the opinion that the Instruction was arguably susceptible of an illegal interpretation, the Court proceeded to examine the actions of the convening authority and the recommendations of his staff legal officer in an attempt to determine exactly which interpretation had been adopted by the former. After considering the staff legal officer's recommendation concerning the sentence (which directly referred to the 1620.1 Instruction as precedent for declining to suspend the adjudged bad conduct discharge) and the convening authority's action (which similarly indicated a belief that neither remission nor suspension was proper in view of the policy expressed by the Secretary of the Navy), Judge Latimer concluded that the convening authority had misconstrued the Instruction in such a manner as to deny the accused the benefit of his unbiased discretion on review; consequently, the case was reversed.

91

In a similar decision, it was alleged that not only was the convening authority's discretion compromised by SecNav Instruction 1620.1 with respect to the initial action on the record, but that the latter's latitude concerning the threshold decision of whether or not to refer charges of attempted sodomy to a general court-martial likewise had been improperly restricted. The latter contention was supported by an argument to the effect that certain portions of the Instruction could have been construed by the convening authority to demand that all charges involving

90. 5 USCMA 287, 17 CMR 287 (1954).

91. United States v. Betts, 12 USCMA 214, 30 CMR 214 (1961).

homosexuality must be referred to a general court once an accused has declined to accept an administrative discharge. Nonetheless, the USCMA did not hesitate to conclude that the convening authority fully appreciated his discretionary obligations both before and after trial. In reaching this conclusion, Judge Latimer noted that:

While command influence is condemned at all levels, policy declarations generally conceded to be necessary to discipline and order are proper. The important question is not whether the convening authority gave consideration to the policy but rather did he understand fully that he had a choice to accept or reject it." Thus, a majority of the Court determined that the instant convening authority, as revealed through an examination of the recommendation of his staff legal officer and his own initial action on the record, had considered the controversial policy but had not been inhibited by it.

From these two illustrative decisions, and others of similar import, it can be seen that when the USCMA considers allegations of command influence affecting reviewing authorities a slightly different and more liberal process of analysis is employed than that utilized with respect to cases involving court members. As a threshold consideration, the USCMA appears to determine whether the contested policy communication or military command arguably may have been considered coercive or mandatory by the convening authority. However, even though an affirmative answer is considered appropriate to this question, the Court does not ipso facto declare the communication prejudicial as in cases involving members of a court-martial. Quite to the contrary, where the discretion of a reviewing authority is challenged, the USCMA appears to feel that since direct evidence pertaining to the state of mind of the convening authority is available for the Court's perusali.e., a pre-trial or post-trial staff legal officer's recommendation and the convening authority's action itself-a resort to indirect evidentiary forms such as presumptions is unnecessary and undesirable. In addition, the Court's attitude in this area may, in some measure, reflect a judgment that commanding officers, being of superior rank, are far more capable of withstanding improper official challenges than are court members whose inferior precedence might encourage a greater willingness to "adapt" to the desires of superiors. In any event, it can be

92. Id. at 218, 30 CMR at 218.

93. See United States v. Frazer, 15 USCMA 28, 34 CMR 474 (1964); United States v. Rivera, 12 USCMA 507, 31 CMR 93 (1961); United States v. Plummer, 7 USCMA 630, 23 CMR 94 (1957); United States v. Hawthorne, 7 USCMA 293, 22 CMR 83 (1956).