(concurring in part and dissenting in part):
Our Court granted review of two issues in this case: Issue I, jury bias; and Issue II, command influence. 47 MJ at 339. The majority reverses on Issue I and does not answer Issue II. I would reverse this case on both issues since both issues are interlocked; it is the improper influence of the commander in February 1995 at the commander’s meeting right before trial (Issue II) that causes the jury bias of Issue I.
Both the majority and the dissent take a detour through the complicated jungle of “implied bias” as a way around the real issue in this case — the issue of command influence. More to the point, the real question is: Did the February 1995 commander’s meeting immediately before the Youngblood trial improperly influence or taint the three already selected Youngblood jurors present at that meeting?
Whether the jurors were tainted by the February commander’s meeting is an issue that can be decided by a review of the facts and our ease law. The record in this case shows the following relevant dates and events:
1. December 16, 1994 — Criminal charges against Airman 1st Class Youngblood were referred to a court-martial.
2. December 16, 1994 — Members of Youngblood’s court-martial selected, including Lieutenant Colonels Snyder and Mac-Pherson, and Major Taylor.
*3433. Either February 10 or 17, 1995 — Snyder, MacPherson, and Taylor attended a commander’s meeting presided over by their commander, a general officer, with his staff judge advocate in attendance. At this meeting, Brigadier General (BGen) Marr communicated to all present his view that justice matters were being handled too leniently by commanders and that he had taken, at least once, actions to “peak” an officer’s career because he was too lenient.
4. February 21, 1995 — Youngblood’s court-martial convenes. Snyder is removed for cause due to attendance at the commander’s meeting; however, MacPherson’s and Taylor’s removal for cause is denied.
BGen Marr’s remarks to his subordinate commanders at the staff meeting were highly inappropriate. See United States v. Martinez, 42 MJ 327, 332 (1995); United States v. Reynolds, 40 MJ 198, 201 (CMA 1994). He told these officers that a previous officer under his command had been too lenient in taking disciplinary action and that he was, therefore, sending a letter to that officer’s gaining command indicating that he thought that particular officer’s career had “peaked.” These remarks created the distinct impression upon those officers at the meeting that their careers might also “peak” if BGen Marr thought they were too lenient in their disciplinary actions. Hence, as the majority puts it, the “sword of Damocles was hanging over [these officers’] heads.” See 47 MJ at 342. Such actions by a commander went far beyond any permissible “training,” see Art. 37(a)(1), Uniform Code of Military Justice, 10 USC § 837(a)(1), and can be reasonably construed as impermissibly suggesting how these commanders should exercise their judicial discretion. See United States v. Martinez, supra.
Today, the majority (with my concurrence) has found that the three court-martial members who attended this meeting were disqualified because of implied bias in this case. RCM 912(f)(l)(N), Manual for Courts-Martial, United States, 1984. It is not contact with command itself that caused these members to be disqualified but the type of contact which requires that result. See United States v. Thomas, 22 MJ 388 (CMA 1986). Eradication of unlawful command influence of this type is one of the main purposes for which this Court was created. See Reynolds, 40 MJ at 204 (Sullivan, C.J., dissenting).
Plainly speaking, both sides in a court of law are entitled to a panel of fair jurors, jurors who have not had any pressure put on them to be lenient or to be harsh. The only allowable pressure on a juror is the duty to be fair. Whether a juror succumbs to any improper pressure is really not the main point. A jury system must appear fair for it to be recognized as fair. United States v. Ayala, 43 MJ 296, 304 n. 4 (1995) (Sullivan, C.J., concurring in part, dissenting in part, and joining Wiss’ dissent).
As Lord Chief Justice Hewart said:
A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.[*]
As a final note, I am puzzled by the dissent’s attempt to paint BGen Marr’s “commander’s meeting” comments as a “general instructional or informational course[ ] in military justice” allowable under 10 U.S.C. 837(a)(1). In the first place, the statute’s plain wording allows only “general instructional or informational courses in military justice.” A general’s “commander’s call” or “commander’s meeting” is certainly not a “course on military justice.” In the second place, anyone who has served on active duty and who has attended a “commander’s meeting” knows that these meetings are used as a management tool for the commanding officer to get his orders, plans, and operational requirements transmitted to his subordinate commanders. Article 37(a)(1) is clearly not applicable here.
*Rex v. Sussex Justices [1924] 1 K.B. 259.