(dissenting):
The critical question before the military judge was whether Lieutenant Jones had an inelastic attitude towards sentencing. See RCM 912(f)(l)(N) Discussion, Manual for Court-Martial, United States (1994 ed.).* Thus, this is a question of actual bias. See United States v. McLaren, 38 MJ 112, 118 (CMA 1993); United States v. Bannwarth, 36 MJ 265 (1993); United States v. Reynolds, 23 MJ 292 (CMA 1987); United States v. Davenport, 17 MJ 242 (CMA 1984). The use of the “clearly demonstrated” standard in actual-bias cases overturns our past precedent without stating any reason for overturning our prior standard of due deference to the trial judge who observed the juror. Cf. United States v. Lavender, 46 MJ 485 (1997); United States v. Minyard, 46 MJ 229 (1997). On appeal, we are looking at the cold record. At trial, the judge was looking at a warm-blooded juror and hearing the tone and sincerity of the answers to the voir dire questions. I would defer to the judgment of the military judge in this case. Therefore, I dissent.
Appellant's court-martial was tried on September 23, 1994.