In the Army case of United States v. Commisso, the United States Court of Appeals for the Armed Forces (CAAF) found the military judge abused his discretion when he denied a post-trial motion for mistrial based on dishonest answers from three members during voir dire (a preliminary examination of a witness or a juror by a judge or counsel). These three people concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed. CAAF reversed the findings, sentence, and decision of the Army CCA and authorized another hearing.

During the case, Sergeant First Class (E-7) Commisso was convicted by a general court-martial composed of officer members. He pleaded not guilty of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, obstructing justice, making a false official statement, and violating a lawful general regulation. He was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence. However, the CCA did not discuss the issue CAAF reviewed, which was whether the military judge abused his discretion in denying the defense attorney’s post-trial motion for a mistrial.

In the decision by CAAF, Judge Ryan criticized two Colonels and a Lieutenant Colonel for their “lack of candor” and “dishonesty” during voir dire. The judge concluded that, had they been honest, Commisso would have had a valid basis for challenging one or more of the panel members for cause.

Before voir dire, three of the ten members of Appellant’s court-martial panel (Colonel Forsythe, Colonel Ackermann, and LTC ARcari) attended monthly SARB meetings that discussed pending sexual assault cases. The SARB team’s purpose is to ensure sexual assault victims receive legal entitlements throughout the court-martial process. These three individuals participated in SARB meetings that reviewed the allegations against Commisso, each time giving facts from the perspective of the prosecution.

The three individuals were then selected to be members of Commisso’s court-martial. During voire dire, they were asked if they had any prior knowledge of the facts of the case, which they did. However, they denied any prior knowledge of the Commisso case.

After Commisso’s conviction, Col. Forsythe independently alerted the SARB that participating in a court-martial panel and SARB meetings might threaten the fairness or appearance of fairness of the panel, demonstrating an awareness of his position during the trial. A prosecutor informed the defense counsel of Col. Forsythe’s comments, and the defense moved for a mistrial.

The military judge held a meeting with the three individuals. Col. Ackermann admitted he and Col. Forsythe spoke about SARB during a break on Commisso’s case. However, the judge denied the motion for a mistrial, finding there was “no basis to grant an implied bias challenge of any member based on their exposure to information at the SARB attributable to the accused’s case.” Judge Ryan noted, however, that the military judge did not consider an implied bias or the cumulative effect of these three colonels serving together on a single panel.

CAAF uses a two-part test to determine whether a military judge’s ruling is sound. The first part is based on the honesty of the answers provided at voir dire. The second is that the defense must have a valid basis to challenge them for a cause.

Judge Ryan, during his explanation, thought the necessity of truthful answers during voir dire is obvious. They need not be deceitful, but there is still a problem with members providing answers that were objectively incorrect. Next, she explained the post-trial ruling did not adequately analyze and investigate the panel members’ dishonesty by failing to ask them why they had lied about their participation in SARB.

Furthermore, Judge Ryan found the military judge’s failure to ask more questions of the three individuals was “an egregious oversight, ” and the military judge’s conclusion that there was no bias in the case defied “common sense.”

CAAF unanimously concluded the military judge abused his discretion by not granting the mistrial. Abuse of discretion is one of the most deferential standards of review, and the military judge tried hard to salvage the conviction. However, there were too many careless mistakes in the ruling. By and large, the greatest blame lies with the three senior officers. Their dishonesty prevented Commisso from having a truly fair trial. As impartial as they believed themselves to be, they were not capable of being the judges of their own qualifications.

For more information about the consequences of the case, or to begin a case of our own, do not hesitate to contact Joseph L. Jordan. The founding attorney of Joseph L. Jordan, Attorney at Law, is an experienced military court-martial defense attorney. He follows the latest news in policy changes and military trial decisions to keep up to date on military law. Whether you are stationed at home or abroad, he can provide you with hard-hitting legal protections. Any military service members, both active duty and retired, can count on him for the most complex defense cases. Contact his firm at (866) 361-4723 or fill out the website’s online form to request additional information or give the team details about your case. See what he can do to defend your rights, your reputation, and your rank.