Overview of drivers as other court-martial personnel:
United States v. Aue, 37 M.J. 528 (A.C.M.R. 1993). Military judge’s assigned driver told witnesses waiting to testify that the MJ told her that “he had already decided the case.” Military judge addressed issue at post-trial Article 39(a) hearing as motion for mistrial and found that: (1) he had never made such a statement; and (2) that driver was trying to impress witnesses with her apparent “inside information.” ACMR returns for DuBay hearing and indicates that MJ should have recused himself at the post-trial Article 39(a) session. Otherwise, no misconduct by military judge and no prejudice to accused.
2. United States v. Knight, 41 M.J. 867 (A. Ct. Crim. App. 1995). Three senior enlisted court members solicited daily information from driver about his opinions regarding
witness veracity, medical testimony, and what transpired during Article 39(a) sessions.
Defense motion for mistrial made during deliberations denied. CA grants immunity to
members in post-trial Article 39(a) session. ACCA said SJA, CA, and military judge
“were remiss” in failing to apply presumption of prejudice absent clear and positive
showing by Government.