(dissenting):
Issue I raised by appellate defense counsel asks:
I
WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW PROPERLY EXERCISED ITS FACTFINDING POWERS UNDER ARTICLE 66(c), UNIFORM CODE OF MILITARY JUSTICE, 10 USC § 866(c), IN RESOLVING APPELLANT’S POST-TRIAL CLAIM OF PREJUDICE ARISING FROM AN INFLAMMATORY ALTERCATION WHICH OCCURRED OUTSIDE THE COURTROOM DURING A RECESS OF APPELLANT’S COURT-MARTIAL.
The Court of Military Review rejected that issue, specifically noting:
As to the first assignment of error, we have considered the question initially raised in trial defense counsel’s clemency petition on behalf of appellant that the court members may have been present to observe an argument during a recess between the defense counsel and military judge on the one side, and police (Naval Investigative Service agent and county deputy sheriff) on the other. Apparently the police were attempting to question ap*392pellant about a different offense than the ones at trial; as it turned out they were looking for someone other than appellant. As also noted within the petition, trial defense counsel failed to place the event on the record because he did not think any court member had witnessed the event; however, counsel was informed later by a prosecutor who had been present that “one or more members” did see the argument. No affidavit from the prosecutor has been offered by appellant.
We infer that the military judge, like the trial defense counsel, was unaware that any member might have witnessed the event. Absent trial defense counsel, or anyone else calling the problem to his attention, we can hardly hold the military judge responsible for declaring a mistrial, as appellant now asserts he should have done. In fact, the affidavits obtained by the government indicate that the members were not exposed to the argument that took place outside the courtroom. Under this set of facts, no further relief is required.
Unpub. op. at 2-3 (emphasis added).
I vote to grant Issue I raised in this case. Contrary to the representation of the Court of Military Review, Captain Harward, a prosecutor assigned to the legal office, did submit an affidavit and it states in pertinent part:
While I do not recall the specific members by name who were present to witness this exchange, I do specifically recall that several members did in fact witness the confrontation. The small size of this building, coupled with the loud exchange between the deputy defense counsel and the military judge would naturally have been heard by everyone inside.
This affidavit is mentioned several times in each of the briefs filed below. Reconsideration by the now Court of Criminal Appeals of its decision is thus appropriate.