United States v. Elfayoumi

ERDMANN, Judge,

with whom RYAN, Judge, joins (dissenting):

Rule for Courts-Martial (R.C.M.) 912 encompasses challenges based upon both actual bias and implied bias. United States v. Clay, 64 M.J. 274, 276 (C.A.A.F.2007); United States v. Ai, 49 M.J. 1, 4-5 (C.A.A.F.1998). R.C.M. 912(f)(l)(N) provides a challenge for implied bias where it appears an individual “[sjhould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” The focus of a challenge for implied bias is upon “the perception or appearance of fairness…