United States v. Harvey

(dissenting);

Courts-martial are public trials, and there is no prohibition against the convening authority attending a portion of the trial. I disagree with the majority that the presence of the convening authority during closing arguments is some evidence of unlawful command influence when there is no evidence the *26members either saw or recognized the convening authority.

The military judge gave the trial defense counsel an opportunity to establish that the convening authority was seen or recognized by the members. A proffer of proof by the trial defense counsel that the senior member, Captain…