Under R.C.M. 912(f)(4), if "objectionable" member does not sit on the panel (for example, if defense counsel uses preemptory challenge to excuse the member), the appellate court will not review the military judge's denial of a challenge for cause for that member. The causal challenge is also waived on appeal if the party exercising the challenge does not exercise its peremptory challenge against another member.
In United States v. Medina, 68 M.J. 587, 592 (N-M. Ct. Crim. App. 2009) the defense counsel challenged member on implied bias grounds at trial and the military judge denied the challenge. Following the denial, defense did not exercise a peremptory against any member. The court held, "Failure to exercise a peremptory challenge against any member constitute[s] waiver of further review of an earlier challenge for cause, therefore, this issue is without merit." (citing R.C.M. 912(f)(4)).
In United States v. Banwell, ACM S31585, 2010 WL 2303270 (A.F. Ct. Crim. App. Apr. 27, 2010) (per curiam) (unpublished) the accused pled guilty to dereliction of duty (underage drinking) and wrongful use of cocaine, and elected sentencing by members. During voir dire, one member said two of his older brothers had drug problems in the past, but both had stopped using drugs and were leading productive lives. The member noted he had only vague recollections of their drug problems because he was so young at the time; he added that his experience would not cause him to give more or less weight to the Government's case. Then, in what appears to be a typographical error in the record, the member gave this response regarding the defense case: "I don't it would affect my impartiality." The defense counsel did not ask further questions of the member or challenge him for cause. On appeal, the defense argued the military judge had a sua sponte duty to remove the member for cause, based on both actual and implied bias. The AFCCA affirmed.
According to R.C.M. 912(f)(4), "Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie." The language in the rule allows the military judge to excuse a member without a challenge from the parties, but does not impose a duty on the judge to do so.
The court quickly found the member should not have been excused. Regarding actual bias, the court noted the member specifically disclaimed any bias and his factual responses about his brothers' drug use support the disclaimer. Regarding implied bias, the court noted the defense counsel did not challenge the member which suggests it was equally reasonable for the military judge to believe the member was qualified to sit. The court further noted "the record . . . raises no sua sponte duty." The court dismissed the defense claim that the record was accurate in reading that the member said, "I don't it would affect my impartiality." The AFCCA characterized this as a "weak attempt to distort the obvious typographical error in the transcript." In an abundance of caution, appellate counsel provided affidavits from the assistant trial counsel and court reporter that (in the court's words) "confirm the obvious": the member actually stated, "I don't think it would affect my impartiality."