The defense, as the moving party, under United States v. Biagase, 50 M.J. 143, 150 (1999), bears the initial burden of eliciting “some evidence” of “facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings.”
In defining unlawful command influence, the court in United States v. Jameson, 33 M.J. 669, 673 (NMCMR 1991) stated, “. . . it is our view that, when an unlawful act of a commander or his staff proximately causes coercion or other unlawful influence upon a case, that case has been tainted by unlawful command influence, even if it is not proved that the commander or staff member concerned specifically intended to perpetrate unlawful command influence upon that case.” United States v. Thomas, 22 M.J. 388, 393 (CMA 1986) also tells us, “Command influence is the mortal enemy of military justice,” and, “A commander who causes charges to be preferred or referred for trial is closely enough related to the prosecution of the case that the use of command influence by him and his staff equates to ‘prosecutorial misconduct.’ ” See also United States v. Weasler 43 M.J. 15, 16 (CAAF 1995).
United States v. Kitts , 23 M.J. 105, 108 (CMA 1986) states that while an SJA is not a commander or a convening authority, his actions may constitute unlawful command influence because “A staff judge advocate generally acts with the mantle of command authority.”
In United States v. Biagase, 50 M.J. 143, 150-51 (1999), the Court of Appeals for the Armed Forces established burdens. After the defense introduces “some evidence” that unlawful command influence occurred and that it has a potential to cause unfairness in the proceedings, the government then has the burden, to show that the facts introduced by the defense (1) are untrue, or (2) do not constitute unlawful command influence, or (3) even if they do constitute unlawful command influence, will not affect the proceedings. The government must make this showing beyond a reasonable doubt.
If the government fails to meet this heavy burden, “. . . the military judge must find that command influence exists and must then take whatever measures are necessary and appropriate to ensure that the findings and sentence, if any, are so far unaffected by any command influence . . .” Jameson, 33 M.J. at 672, quoting United States v. Jones, 30 M.J. 849, 854 (NMCMR 1990). The court in United States v. Rodriguez , 16 M.J. 740, 742 (AFCMR 1983), citing United States v. Rosser, 6 M.J. 267 (CMA 1979), stated, “The test for prejudice from unlawful command influence is not merely whether such influence actually existed but whether there is an appearance of such influence. The appearance of the evil of command influence is as much to be avoided as the actual use of such influence.” Citing United States v. Crawley, 6 M.J. 811 (AFCMR 1978), the Rodriguez Court went on to state, “Appearance of unlawful command influence provides a presumption of prejudice. . . “.