the blue brief i'm sorry on page eight of the blue brief you say if you don't already you need to the military system i'm lawful command influence allows for an unconstitutional taint to permeate the proceedings actual men and influence but actually the appearance of command and influence the military justice system they need to make sure the optics are correct you know we're not looking here necessarily throwing somebody in jail for command influence because it could be in tent often it could be subtle often it but in this particular case it creates an unfairness with in the system even that appearance creates unfairness you you say it at the same section the military judge perhaps in response to the subtle command influence flaunted congressional inquiries presidential directives by a lot of the information to be placed into evidence or talking i believe on the  honor and one i was not representing the gentleman at the time number two i don't think there's any criminal intent there i think there's a subtle intent and as we talk about what you can do you think it was subtle to rush up if you objection the major that was given to the case did not ok he did raise it in the clemency and you know in the military system the court is not final until such time as it's been acted on by clemency so it's still within the record still a position where it can be raised you say that again that on page seventeen of the gray brief that lieutenant colonel collins was giving advice to the prosecutors  paper to the trial counsel again if i had been on that particular case i would have raised that objection the same way with coaching the witness i have a standard motion i put in a court martials regret that i wasn't the counsel on that it was not put in and we have a situation where a witness's testimony answer pretty critical information was not adding up in the words of the trump counsel they take her into the back x mark today and basically c if she felt that the government felt she was not telling the truth she could have gone to jail and actually she did not go to jail turned out but she had every incentive to do exactly what the government s any kind of preparation proof before him that's fine that's fair problem but to take somebody off the stand in the middle of their testimony and go in and say you're sure is not adding up we feel that as was a basic deprivation of fundamental in the military justice system you only have to show an appearance of impropriety on the part of the members of the board or others and that's what we're doing here sir we're trying to do any hope we're doing that your honor it's the military system is so different i recognize that i was i was not a jag i was in many authority military i've done court martial work since that but it's where you have especially the staff judge advocate this is where the court below made i think a very serious error he said well you know we kind of girl going up there that's not command influence because it wasn't commander but military law holds that that staff judge advocate acts under the mantle of command in effect she's wearing the general stores when she goes up there and you know if you take enlisted people or even junior officers i mean the major's uniform there can be intimidating you know intimidate us but it wouldn't intimidate journalist or person would kind of girl oh it was actually one rank higher and wearing a star effectively wearing the stars of the of the general the reason why the military courts are put so much emphasis on community wants is because even the appearance and i think you'll agree perhaps you'll agree that the necessarily i'm not sure we even knew what material he was alleged to have given it sure looks like from the record like what was being done was that the study material was being taken and the parts that were on the test were being highlighted so that the reader would know this is where the question is that can be done but it was known and remember your honor that's one of those suppose a transaction was later proved to be her husband's fingerprints on not certain and that the problem comes out what was if i write down some questions on a piece of paper myself and i think this might be what we're looking at is that suspected test material is what we're looking at is anything basically that air force o s i i don't want to just say i'm sorry that's not alleged that's your own personal study materials that you write up you i think it is and i think it's government of the suspect trust material because basically what it says anything that the police or the prosecutors say were testimony i'm still trying to figure out where testimony is i don't know you know i can't find it but i can tell me that but it is something that if i bought one of the commercial test materials i'm not air force but if i did i was and bought one of those commercial test books which are free to be purchased and gave it to somebody as a birthday material has to be set aside void for vagueness it was improperly charged there is no such thing as controlled suspect it's a material it was improperly judit katie and your honor which certainly would have an opportunity if this is set aside and remained in the air force that probably try to do it right and they would have still have jurisdiction over him even though he's retired in your arm it's my revolt on thank you thank and and flute and this is an easy summary of formants that is the standard review mr pitman has objected to that and said there should be to novo review from from a collateral proceeding or there are either are not going to go to your primary argument which is that even if there were some merit as an original matter and that the novo review form to what we've heard and see in the briefs where under an extremely limited standard yes i want to put that aside so the materials that were alleged to have been improperly shared words i know they were charged as suspected test materials were they actual tests material they could also be characterized as actual test materials if you look for example at appendix twelve forty seven testimony of at that time she was told to identify to staff sergeant draxler even though she was demoted there after due to her testimony it said that she stated that she went to the test yeah actually highlight of the test you know she went back to her materials and highlight those materials and her test materials and so they are the actual test questions so if that's where she gave those to mr pittman she gave th charged with both because the suspected test material was it was if you look at paragraph five point nine of the air force instruction very six to six o five and you can find that at appendix page one eighty three we all want it which way to it lists all the types of areas in which you can be what you are not supposed to do it all adds up to you not allowed to cheat i mean it effectively you're not allowed to give somebody i mean know i know i want to be entered brett and they had a very strict honor policy effectively it's it's an instruction a regulation that regulates an honor code policy you don't share test materials you don't give out test materials in the record you can see that the over and over again there were several witnesses testified that they were there weren't don't share this material you're not allowed to share this with you're you're not allowed to receive this material because we want to get an honest assessment of what you as a candidate for promotion can d issues that was charged we have evidence here in the pending speech twelve forty six to forty eight twelve forty seven forty nine that we have highlighted test materials we also have additional test materials that tech sergeant smith was was given by mr pittman when somebody says to an air force staff sergeant mechanic did you check that they engine on the fire before it took off the answer has to be true r core of everything in the military mister so i mean i think that at the end of the day they charged him with conduct he did he cheated he shared highlighted test materially received highlighted test material to can you switch over to the one or two points being made about what the staff judge advocate here in the heart really sure i gather first of all those are two separate arguments one is that it prejudiced the court members from seeing it and the second was that he then should not have advised the convening of commanding officer i think that's that's talk about the role of an ashtray yet yes your honor that this staff judge at judge advocate serves a vital role with the convening authority they serve several different roles one in this circumstance they assist the convening don't i don't know if it's common or not but i think i think it is it i think it it happens sometimes i'm sure they sit in the sea because they're there overseeing the jags and the judge advocate general's as well they don't sit on either side but their job is to is a supervisor the not only is the after dad to get but they're also they don't sit on either side inside the bar it's a gathering i gather she did sit on one side she may have said yes i'm on the court room and i don't think it was quite like a wedding or are where pages and it's pages seventy seven seventy eight it says no one is alleging actual wrongdoing here they said that at the most they said that there were notes passed and that's again on pages seventy seven seventy eight of the record that that is that is that is a total  there mr pittman makes some allegations about coaching an adversarial advice or rushing up to confer none of that is in the in the in the record that's that's all counsel's but just but but you said no passing is is in the record the they can meeting authority even if it's been provided by the staff judge advocate it's not a racial prejudice so that's so that you have circumstances that are much worse where they do in fact they've they they may talk witnesses they do know what was in those those no it's obviously but my speculation and perhaps because i represent the united states my speculation is she was doing her job as their supervisor to say you know you're not deported you know your department  not right for all i know you know she could have a sick relative though we don't know and and defense counsel didn't ask what was in those notes so we don't actually know he had said ask this question of the witnesses that and and the court members saw that and then some question was asked and it turned out to be a really good question that a probable it potentially could be your honor but again there would you have to stablish prejudice under the under article six  some level here that that some of these arguments beyond prosecutorial misconduct allegations with regard to unlawful country and influence were waived the court below you know found that it wasn't and went on onward in fact  larger review than we would have expected under the standard review in this court and in fact almost looked at this nov and still found that there was no lawful command in the absence of a military jury or the members of the court permitted directly question the witnesses the members of the bright man not only in the judge ask questions but the members of the court themselves can ask questions and judge told answer when your questions i've done a number of court martials probably somewhere be around twenty five or thirty since i retired i've seen sta adamant advocates come in and go out there's only been two times i've ever seen passing notes one was a national guard court martial i was the defense counsel i shut it down jack in the military judge and the other one was this a correct term for what the recipient of the clemency request would they could afford what they call a debate hearing which is effectively a special hearing to study that one issue that was not done i believe in the sixty nine review that we goes into a star chamber basically somebody looks at it and makes a decision so it is a different kind of system and your honor so i think the other issue we didn't really address very much are going to that my last few seconds is the off on the wrong track on that because it's irrelevant it's not the issue of whether warning should be given it's the issue of the military court martial man for court martial says you do not disclose the fact that there was any indication  counsel to us attorneys that doesn't seem very serious but to the average people sitting up there especially military folks and i was once i'm not being critical but sitting there and saying lawyer must be guilty and that's why the