(concurring in part and dissenting in part):
I concur with my colleagues’ analysis of all but one of the assignments of error. As to the first assignment of error alleging unlawful command influence, I conclude that the issue was raised at trial but that the record does not contain an adequate factual basis for appellate disposition. Accordingly, I would order a limited hearing in accordance with United States v. DuBay, 37 C.M.R. 411, 1967 WL 4276 (C.M.A.1967) to obtain necessary findings of fact.
As the majority opinion points out, it is undisputed that Major Loughlin, the officer who convened this court-martial, selected the members, and was executive officer of the appellant’s squadron at the time of trial, was in the courtroom during arguments on findings. Of the four members who heard this case, the president, Captain Cisneros, was the only member who was part of Major Loughlin’s squadron.3 During voir dire, Captain Cisneros acknowledged that she knew Major Loughlin. The other members stated they did not know Major Loughlin.
The trial defense counsel moved for a mistrial based not merely on Major Loughlin’s presence in the gallery, but because the members were “looking over our shoulder” at Major Loughlin diming the closing argument. *618While the military judge said that he didn’t see that, he did not explain what he meant.4
The majority dismisses the trial defense counsel’s argument as mere speculation. I view it differently. When an officer of the court tells the military judge that he has seen something in the courtroom, I consider that something more than mere speculation. See Judge Advocate General Instruction 5803.1B, Rule 3.3e(l), Comment (Candor and Obligations Toward the Tribunal) (11 Feb 2000)(“[A]n assertion purporting to be of the covered attorney’s own knowledge, as in an affidavit by the covered attorney or in a statement in open court, may properly be made only when the covered attorney knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.”). When an attorney tells a trial judge that he saw something in open court, absent credible and persuasive evidence to the contrary, it should be presumed that the assertion is true.
It is not necessary to cite the many cases documenting litigation of unlawful command influence to establish the fact that most incidents of such influence occur outside the courtroom. Here we have an allegation of such influence inside the courtroom. The military judge thought enough of Major Loughlin’s presence to sua sponte make it a matter of record. The trial defense counsel was concerned enough to move for a mistrial, a drastic remedy available only for extraordinary developments in a criminal trial. Based on the foregoing, I conclude that the issue of unlawful command influence was raised.
Unfortunately, once raised, neither the trial defense counsel nor the military judge tried to get to the bottom of the factual issues inherent in this specter of unlawful command influence in the courtroom. The trial defense counsel’s reluctance to have the military judge highlight, by limiting instruction, the convening authority’s presence is understandable, but a motion for a mistrial should not be idly made without a willingness to develop supporting facts. When the trial defense counsel failed to present any evidence in support of the motion, the military judge had a duty to, at a minimum, call in Captain Cisneros for individual voir dire to determine whether she saw Major Loughlin, whether he said or did anything, and whether she was influenced by his presence in the courtroom. See United States v. Rosser, 6 M.J. 267 (C.M.A.1979).
The Rosser case is instructive on the duty of a military judge when the issue of unlawful command influence is raised in the courtroom or the immediate vicinity of the courtroom. In that case, Captain Leibhart, the appellant’s company commander and accuser, spoke to a member in a waiting room adjacent to the courtroom. In the same waiting room, and in the presence of both Government and defense witnesses, he also eavesdropped on the trial and looked through a window into the courtroom. Several witnesses approached him to complain of their fear of bodily harm as a result of their anticipated testimony. Captain Leibhart told them to have the intestinal fortitude to stand up and say what happened. It should be noted that he was also the company commander of several of the Government and defense witnesses.
At some point in the trial, the trial defense counsel made a motion for mistrial based, in part, on these activities and conversations of Captain Leibhart in the waiting room. The military judge then conducted an inquiry that our superior court characterized as “perfunctory” and inadequate. Id. at 273. The court also offered the following observations on the duty of a military judge in resolving a motion for mistrial rooted in unlawful command influence:
Likewise, the military judge must engage in a sufficient inquiry as a matter of law to uncover sufficient facts to decide the issue before him. Since such a motion may raise issues of crucial importance to the integrity of the military justice system, the military judge may not be satisfied with mere perfunctory conclusions in determining whether a military accused is receiving a fair trial. In addition, the application of law to the facts by the military judge must *619be reasonable in some objective sense to be upheld by this Court. Finally, a mistrial is a drastic remedy, but equally important in our mind is the affirmative responsibility of the military judge to insure the military accused a fair trial decided by impartial triers of fact and free from unlawful command influence. Moreover, we believe it incumbent on the military judge to act in the spirit of the Code by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings. The failure of the military judge to meet such responsibilities may under particular facts and circumstances be found to constitute an abuse of his judicial discretion.
Id. at 271, (internal footnote omitted). While I do not believe that this sweeping language places the burden of producing evidence solely on the military judge, I conclude that under the facts and circumstances of the case at bar, it was incumbent for the military judge to do more than he did. Given the seriousness of unlawful command influence in our system of military justice, where facts indicate that such influence might have occurred under the very nose of the military judge in his courtroom, if counsel do not request that members be questioned and/or witnesses be called, the military judge should do so sua sponte.
I would order a DuBay hearing to answer the following questions:
1. What, if anything, did Major Loughlin do or say while he was sitting in the courtroom (including, but not limited to, facial expressions and body language)?
2. Did any of the members see Major Loughlin in the courtroom?
3. Did any of the members recognize Major Loughlin?
4. Did any of the members realize he was the officer who convened the court-martial?
5. Was any member distracted from the closing arguments because of the presence of Major Loughlin?
6. Was Captain Cisneros “intimately familiar” with Major Loughlin, as argued by the defense counsel? Record at 342. If so, what was the nature of their relationship?
7. In view of the defense counsel’s argument that the convening authority “heard all the evidence,” was Major Loughlin present in the courtroom during other portions of the trial? Id. If so, what, if anything, did he do and say while in the courtroom?
8. Was Major Loughlin’s presence in the courtroom mentioned during deliberations? See Rule for Courts-Martial 923, Manual for Courts-Martial, United States (1998 ed.)
Finally, I offer an observation and caution. This case indirectly presents the issue of whether the convening authority (and, by extension, his staff judge advocate) may properly attend a trial by court-martial, particularly when the forum is trial by members. See R.C.M. 806. However, that specific issue has not been briefed, and nothing in this opinion should be construed as addressing or resolving that issue.
. Captain Cisneros' voir dire revealed that her fitness report was written by a Major Kapps and reviewed by a Colonel Turner. Record at 54-55.
. We don’t know if the military judge was distracted, was focused on counsel, had his eyes closed, was contradicting defense counsel, or didn’t see the members for some other reason.