United States v. Isbell

Latimer, Judge

(concurring):

I concur.

It was conceded in United States v. Littrice, 3 USCMA 487, 13 CMR 43, that the balance between discipline and justice in the military service was delicate. Here the facts and circumstances are more fairly embraced within the ambit of the former. But more than that, in this instance, the subject of command control was probed thoroughly by a voir dire examination. All the members of the court were questioned as to whether the publications would in any way affect their obligation to well and truly determine the issues between the Government and the accused. Each member who had any knowledge of the documents stated in substance that he understood his obligation as a member of the court and that he would not be influenced by the subject matter of the memoranda. It would take some evidence to the contrary before I would conclude they were concealing their true mental condition. Under my interpretation of the law, members of a court-martial are only disqualified for cause when they are influenced adversely toward an accused. The voir dire examination established that here they were not swayed by the policy declarations announced some five weeks prior to trial.