Influencing the defense counsel
Article 37 prohibits the convening authority from censuring, reprimanding, or admonishing the defense counsel with respect to the exercise of his or her functions in the conduct of the proceeding.
United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996). During a recess interview with the DC just before he was to be cross-examined on suppression motion, the CA told the DC that he questioned the ethics of anyone who would try to get results of urinalysis suppressed. The court found that this violated Art. 37, but found no effect on trial process because the defense counsel skillfully crossed the CA, and because defense never raised the claim until after trial. The court granted a remedy of sending the case back for a new action by a different convening authority
United States v. Crawford, 46 M.J. 771 (C.G.Ct.Crim.App. 1997). The convening authority “dressed down” the defense counsel, told her the sentence was too light, that the appellant had lied to her and encouraged her to put on false evidence. The defense counsel took offense and told him he better have proof of accusations like that. The convening authority turned to the appellant, who was also there, and said he was going to investigate whether he had perjured himself. The court found a violation of Art. 37. This happened after trial, so there was no effect on the trial. As a preventative matter, the convening authority withdrew himself from acting on the case. With him no longer involved in the case, the court could find no prejudice.