United States v. Smart

COX, Judge

(concurring):

While I concur in the principal opinion, I do not intend to create any rule of law known as “implied bias” where a prospective court member has been the victim of a crime similar to the one charged. I would test court-member qualifications on a case-by-case basis and would, almost always, defer to the discretion of the military judge. See Wainwright v. Witt, — U.S. ---, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Here, I agree with Chief Judge Everett that this military judge abused his discretion.