10 . . . 9 . . . 8 . . . 7

CAAF released another opinion today. United States v. Elfayoumi, __ M.J. ___, No. 07-0346 (C.A.A.F June 4, 2008). Here's a link. That leaves just seven more to be decided this term.

In Elfayoumi, CAAF split 3-2 on an implied bias members challenge issue. Judge Baker wrote for himself, Chief Judge Effron, and Judge Stucky. Judge Erdmann, joined by Judge Ryan, dissented.

One of the members stated that he believed homosexuality was "morally wrong." He also stated that "a person who possesses pornographic material is immoral." Three of the charged offenses involved same-sex acts, including same-sex forcible sodomy, and the case also involved pornography. The member indicated that he could nevertheless "fairly evaluate the evidence." The military judge denied a challenge for cause against the member. (The opinion doesn't indicate how that challenge was preserved. But based on the ACCA number in the case, it appears that this case was tried years before the 2005 Wiesen amendments to the MCM.)

The majority ruled: "[T]he question is not whether [members] have views about certain kinds of conduct and inclinations regarding punishment, but whether they can put their views aside and judge each particular case on its own merits and the law, such that appellate courts, in applying R.C.M. 912, are not left in substantial doubt as to the fairness or impartiality of the members. Here, because the military judge specifically questioned MAJ G on his ability to separate his personal views from the facts of the case, and in light of MAJ G's responses, we conclude that the military judge did not abuse his discretion in denying the challenge for cause." Id., slip op. at 9-10.

The dissent maintained that "a reasonable member of the public would have serious doubt about the fairness of Elfayoumi's trial with Major (MAJ) G sitting on the panal." The dissent maintained that a "reasonable observer could conclude that MAJ G's 'strong,' 'moral' and 'Christian' beliefs would influence his adjudication of the offenses and his perception of Elfayoumi who: inferentially was homosexual; rented and viewed pornographic materials; touched another male while viewing pornography; indecently touched three other males at distinct times; and committed forcible sodomy upon a male who refused his sexual advances."

The dissent also faulted the military judge for failing to indicate on the record that he considered the liberal grant mandate in ruling on the challenge.

This divided opinion doesn't appear to reflect a doctrinal dispute within CAAF. Rather, it appears that the implied bias issue was very close to the line. Two judges saw it on one side of the line; three saw it on the other.