(dissenting):
I would affirm. The majority holds that the judge “abused his discretion in failing to liberally grant this challenge for cause.” 43 MJ at 494. In my view, the only abuse in this case is the child abuse of which appellant was convicted at the trial level. His conviction was affirmed by the court below with one dissent.
On Issue I (not answered by the majority), the children’s testimony reveals that appellant not only allowed the children whom he was baby-sitting to view pornographic material, but he also observed and encouraged them to do the same. This testimony, if viewed in a light most favorable to the Government, would allow a reasonable factfinder to conclude that appellant took indecent liberties with a child with an intent to gratify his sexual desires. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
On Issue II, the record clearly shows that the military judge took all reasonable and proper steps necessary to insure that an accidental contact between a juror and his doctor did not prejudice appellant.
In the present case, 6 days into the trial and after the Government rested, it was brought to the attention of the defense that Captain (CAPT) Tufts, a court member, had possibly communicated with an outside source regarding the case. Commander (CDR) Jay Montgomery, the NAVCENT [Naval Force Central Command] Force Surgeon, was called by the military judge and questioned regarding a conversation he had with CAPT Tufts. CDR Montgomery testified that he “stopped” by CAPT Tufts’ office on another matter, “saw that he was distressed,” and asked him if there was a problem.
The following dialogue occurred between the military judge, military counsel, CDR Montgomery, and CAPT Tufts with respect to the conversation between the Commander and the panel member:
A. I stopped by his office to discuss some other issues and saw that he was distressed. I asked him, as his physician, what was going on. And he mentioned that he was in the proceedings here and had, you know, and that as one who’s not ever been involved in such things, found the testimony and the stories and things to be distressing to him. That really was about the extent of our conversation. We were putting together a stress reducing program for all members after the proceedings are over. As I remember, there was another — somebody else was there and mentioned that we shouldn’t be discussing *495anything about the trial and so there wasn’t much more said.
Q. Did he discuss any particulars concerning the case or ask for any insight from you?
A I don’t recall any specific questions about any of the words that might have been used in here, medical words, that he wouldn’t of understood. Now, he did mention, I — he mentioned the name of one of the — people involved in the trial here, but that was about all.
Q. So, he wasn’t seeking solutions to any problems that he had regarding the events unfolding in the case?
A For himself, or for his testimony here? Q. Not his testimony. He’s a member. He’s a jury member.
A The solutions he was beginning to ask were more personal for himself. He was concerned about things he was hearing, I could see, that was bothering him. I don’t recall that he was asking me for advice as to how he should think about a case, or how he should think about a particular line of testimony.
* * *
Questions by the individual military counsel:
Q. Sir, did Captain Tufts inquire with you, at all, about your experience with children?
A Yes.
Q. And their responses to questions that you put to children?
A I don’t remember specifically. Do you have a specific question?
Q. What did he ask you about your experiences working with children?
A He knew I had been a pediatrician before I became a family practitioner. He wanted to know if I had seen cases like this, cases that would involve the allegations of incest, or allegations of pedophilia, and things like that.
Q. Have you?
A I have in my experience as a pediatrician, yes.
Q. Did you tell his [sic] as such, sir.
A I said, ‘Tes, I had,” but did not go into any details about the cases, as far as how to make a diagnosis, if one could be made, or anything about psychological profiles. That sort of thing like that. Just with the answer that “I had seen cases and that they had troubled me also.”
Q. Did he ask you how you knew if the children were telling you the truth?
A I think he raised a question about not being — himself not knowing whether children can be led in a courtroom discussion. I think he’s seen things on television, and heard about things that “Children sometimes change testimony,' sometimes children make up things, sometimes children interpret things different.” He wasn’t asking, specifically, about this case, but just, in general, “Can that happen?” I said that “That depends on a case by case sort of thing, and it depends on how well the children had been prepared for the trial, how the trial was held.”
(Emphasis added.) The military judge then reopened the voir dire of CAPT Tufts, who testified in relevant part as follows:
MJ: Have you reviewed any of the evidence with anyone, including the Force Surgeon, and tried to get their aspect or opinion?
MEMBER (CAPT TUFTS): Absolutely not.
MJ: Lieutenant Metz?
IMC: Captain, have you discussed the Force Surgeon’s background as a pediatrician?
MEMBER (CAPT TUFTS): I know he’s a family practice [sic]. I think.
IMC: Have you asked him if he has any experience in pedophilia or child sexual abuse cases?
MEMBER (CAPT TUFTS): I don’t even know what pedophilia means.
IMC: You haven’t asked about his working with child sexual abuse victims?
MEMBER (CAPT TUFTS): I have not.
IMC: Did you have a conversation with Commander Montgomery, based on your frustrations, in trying to understand child witnesses?
MEMBER (CAPT TUFTS): No. Not that I can remember.
*496IMC: Did you ask Commander Montgomery whether children lie?
MEMBER (CAPT TUFTS): No.
IMC: Did you ask Commander Montgomery whether children can be coached to tell a story?
MEMBER (CAPT TUFTS): No.
IMC: Did you discuss those issues with anyone?
MEMBER (CAPT TUFTS): No.
IMC: You do remember having a conversation with Commander Montgomery?
MEMBER (CAPT TUFTS): We have a parallel frustration problem going on with the use of government vehicles, and I’m in the midst of trying to write an instruction which meets the letter of the law or the intent of the law, but it still provides some flexibility. And I’m not sure, at this point, I see 50, a 100 people a day, coming through my office — I work in an open bay office space. People come up to me all day about a thousand different things. And the specifics of individual conversations are pretty fogging [sic]. Since I’ve been putting in 18 — 14 to 18 hour days the last few days, because of this, my memory is a bit vague as to when I talked to whom about what. But, I don’t believe I had any specific conversation with Commander Montgomery regarding the details of this case, other than my frustration over it.
The military judge ruled as follows:
I read the case law, and under consideration is the challenge for cause against Captain Tufts. The motion is denied. From hearing the testimony of Commander Montgomery and Captain Tufts, I don’t — it’s not my perception that he sought advice on the case. He was seeking empathy, at the most, according to Commander Montgomery’s testimony, commiserating that these are difficult situations, and w[o]ndering if Commander Montgomery had faced them himself. Statements, perhaps, were made that courts-martial are frustrating. It doesn’t appear that they talked any substance regarding this case. Of course, Captain Tufts said he doesn’t have recall of the specific conversation. He did say that, as a result of his work schedule, he’s talked to many people with other projects. Essentially, he doesn’t remember the conversation, and I don’t find that any matters have impacted on his ability to be an impartial member in the court-martial.
The military judge’s reasoning is sound. Captain Tufts unequivocally stated that he did not discuss any specific facts or issues of the case. See United States v. Nigro, 28 MJ 415, 418 (CMA 1989). Furthermore, the evidence does not indicate that CAPT Tufts’ conversation with CDR Montgomery affected his ability to be a fair and impartial member, especially in light of his lack of recollection of the particulars of the conversation. Thus, based on the testimony of CAPT Tufts and CDR Montgomery on the record, I conclude that the military judge did not clearly abuse his discretion in denying a challenge for cause against CAPT Tufts.