You seek out a witness for the defense and they tell you they have to check with leadership to see if that’s OK. This happens occasionally.
Most of the time they come back and say they are good to go, or they are intransigent and you have to ask the TC to have a quiet word.
“We have repeatedly held that the vetting of witnesses in an attempt to influence future testimony is improper and has a “chilling effect on our judicial system.” United States v. Lowery, 18 M.J. 695 (A.F.C.M.R. 1984); United States v. Charles, supra.”
United States v. Tucker, 20 M.J. 863, 866 (A.F.C.M.R. 1985). And, see,
Appellant also contends he was denied a fair sentencing proceeding by the presence or perception of command influence within the Division. We are convinced appellant did not suffer prejudice as to sentencing. Appellant was not tried by court members who could have been influenced by General Anderson’s remarks, but by military judge alone. As a result, the appearance of command influence did not enter the courtroom. The remaining area of possible prejudice affecting sentencing is in the production and testimony of favorable character witnesses. In this trial, appellant’s civilian defense counsel informed the military judge that favorable character witnesses were available and present outside the courtroom, but that for tactical reasons, would not be called. While defense counsel’s averment of no prejudice does not constitute waiver of the command control issue, United States v. Blaylock, 15 M.J. 190 (C.M.A.1983); United States v. Hawthorne, 7 U.S.C.M.A. 293, 299, 22 C.M.R. 83, 89 (1956), his factual statement to the court concerning the availability of witnesses and counsel’s opinion that he had “discovered no evidence as a result of this matter that would prejudice the accused” are entitled to significant weight as to the question of prejudice. This is particularly so in view of defense counsel’s statement in the record that he was aware of the division command sergeant major’s letter which cautioned noncommissioned officers not to testify for convicted soldiers in a trial by courts-martial, and his knowledge that General Anderson had “given some briefings [**7] to various groups of officers on the same subject. . . .”
United States v. Yslava, 18 M.J. 670, 673 (A.C.M.R. 1984). Or,
Admittedly, evidence is spares on the direct effect of General Anderson’s conduct upon the appellant’s pleas of guilty. This is not surprising. As the Court of Military Appeals recently observed, “[I]t is well established that unlawful command influence may assume many forms, may be difficult to uncover, and affects court members in unsuspecting ways.” United States v. Karlson, 16 M.J. 469, 474 (C.M.A.1983) (citations omitted). First of all, the evidence I have discussed came primarily from the determined efforts of trial defense counsel in their representation of other clients in other cases. This evidence was not easily gathered by them. Some witnesses who heard the General’s remarks initially were free and open when discussing with defense counsel their perceptions of the General’s lectures, but later became reticent after their supervisor or, in one case, the Staff Judge Advocate, talked to them. This problem was illustrated by a battalion commander who is said to have asked several defense counsel, “Why [are] a bunch of captains and majors . . . ganging up on a two star[?]” He also asked counsel why they were still pursuing “this matter,” and then somewhat cryptically said that what they were doing “was not in the best interests of all concerned.” Cf. United States v. Kitchens, 12 U.S.C.M.A. 589, 592 n. 3, 31 C.M.R. 175, 178 n. 3 (1961) (allegation of retaliation against defense counsel who raised command influence). Secondly, subordinates subjected to such pressures often are faced with conflicting concerns for their careers and the desire to do the right thing and may not be able to accurately discern the effects of their superior’s conduct. United States v. Rosser, 6 M.J. at 272; United States v. Zagar, 5 U.S.C.M.A. 410, 414, 18 C.M.R. 34, 38 (1955). Moreover, this issue was not explored at the trial because neither the appellant nor his counsel knew of General Anderson’s conduct. Unbeknownst to them, an artificial barrier had been erected in front of the courtroom door, a barrier designed to keep out witnesses favorable to the appellant. Some witnesses did appear for the appellant, but I do not know whether the barrier excluded others who might have testified on the merits or sentencing, or whether it affected his decision to plead guilty.” As a matter of principle, any doubt in this matter must be resolved in favor of the accused.” United States v. Johnson, 14 U.S.C.M.A. at 551, 34 C.M.R. at 331. United States v. Karlson, 16 M.J. at 474.
United States v. Treakle, 18 M.J. 646, 667 (A.C.M.R. 1984).