Opinion Analysis: Members have a duty to be candid, and the dishonesty of three members required a mistrial in United States v. Commisso, No. 16-0555/AR
CAAF decided the Army case of United States v. Commisso, 76 M.J. 315, No. 16-0555/AR (CAAFlog case page) (link to slip op.) on Monday, June 26, 2017. The court finds that the military judge abused his discretion when he denied a post-trial motion for a mistrial that was based on dishonest answers from three members during voir dire (the members concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed). CAAF reverses the findings and sentence and the decision of the Army CCA, and authorizes a rehearing.
Judge Ryan writes for a unanimous court.
Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. 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. But the CCA did not discuss the issue that CAAF granted to review, which is:
Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.
In today’s unanimous decision Judge Ryan excoriates the members – two Colonels and a Lieutenant Colonel, all identified by name – for their “lack of candor” (slip op. at 2 and 12) and their “dishonesty” (slip op. at 11) during voir dire, concluding that had they been honest then Commisso “would have had at least a valid basis for challenging one or more of the panel members for cause.” Slip op. at 11.
Judge Ryan begins:
Before they were questioned on voir dire, three of the ten members on Appellant’s court-martial panel—COL Forsythe, COL Ackermann, and LTC Arcari—regularly attended monthly SARB meetings that discussed pending sexual assault cases.
Slip op. at 3. The SARB is an interdisciplinary team whose purpose is “to ensure that sexual assault victims received their legal entitlements throughout the court-martial process.” Slip op. at 3. The three Colonels participated in multiple SARB meetings that reviewed the allegations against Commisso, each time presenting the facts from the perspective of the prosecution. See slip op. at 4 (quoting SARB presentation).
The three Colonels were selected to be members of Commisso’s court-martial and during voir dire they (and every other member) were asked:
(1) Does anyone have any prior knowledge of the facts or events alleged, in this case?”; (2) “Has anyone heard about any of the facts of this case whatsoever?”; (3) “Are you, a member of your family, or close friend a member of a group or charity that deals with issues of sexual assault [either] in [the] military or in general?”; and, importantly, (4) “Have you ever been a unit victim advocate, a sexual assault response coordinator, or otherwise involved in [the] sexual assault response system?”
Slip op. at 4 (emphasis added). All three answered no to each of these questions, the defense did not ask follow-up questions, and the defense did not challenge any of them peremptorily or for cause.
After Commisso was convicted, COL Forsythe independently alerted the SARB that “serving on both the SARB and a court-martial panel might threaten the fairness, or the appearance of fairness, of the panel.” Slip op. at 5. He also:
suggested that the incident review slides should be presented differently because defense counsel are “aggressive” about finding something to remove members from the panel . . . He also stated that sometimes when he is sitting on panels he wants to jump over the bar and punch the guy, or words to that effect. He reiterated that he is objective, and he wants to get the bad guys the correct way, or words to that effect. On several occasions, he expressed his desire to be objective.
Slip op. at 5. A footnote clarifies that “COL Forsythe’s comments about wanting to “punch the guy” were not specifically about Appellant’s case.” Slip op. at 5 n.5.
A prosecutor informed defense counsel of Colonel Forsythe’s comments, and the defense moved for a mistrial. The military judge conducted a post-trial session where each of these three members was questioned, and Colonel Ackermann revealed that he and Colonel Forsythe spoke about the SARB during a break in the deliberations on Commisso’s case. None of the Colonels, however, was asked why they did not disclose their participation in the SARB during voir dire.
The military judge ultimately denied the motion for a mistrial, finding:
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. . . A potential member’s exposure to such vague information [as that presented at the SARB meetings] could not objectively undermine public confidence in COL Forsythe’s or any other member’s objectivity as a court member.
Slip op. at 7 (alteration in original). Judge Ryan notes, however, that the military judge did not consider any implied bias, Colonel Forsythe’s negative statements about defense counsel and the accused, or the cumulative effect of these three Colonels serving together on a single panel. Slip op. at 7.
CAAF employs a two-part test to review the military judge’s ruling: “[F]ailure to grant a motion for a mistrial is an abuse of discretion if,  had the members answered material questions honestly at voir dire,  defense counsel would have had a valid basis to challenge them for cause.” Slip op. at 9-10 (citing United States v. Mack, 41 M.J. 51, 55 (C.M.A. 1994)).
First, Judge Ryan explains that “the necessity of truthful answers by prospective members if [voir dire] is to serve its purpose is obvious.” Slip op. at 9 (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)) (marks omitted). The test “is not whether the panel members were willfully malicious or intended to deceive—it is whether they gave objectively correct answers.” Slip op. at 10 (citing United States v. Albaaj, 65 M.J. 167, 170 (C.A.A.F. 2007)). Moreover:
because “[a] panel member is not the judge of his own qualifications,” each member must answer fully and correctly on voir dire regardless of his own subjective “evaluation of either the importance of the information or his ability to sit in judgment.” Id. It is therefore settled law that a panel member has an ongoing duty to advise the court of any answers he or she realizes, or reasonably should have realized, were incorrect or have become incorrect before the close of trial. See id.
Slip op. at 10 (citing Albaaj). Here the answers were clearly not objectively correct, and that “satisfied the first requirement for a mistrial set forth in Mack.” Slip op. at 11.
Next, Judge Ryan explains that the military judge’s post-trial ruling “failed to adequately analyze and investigate the panel members’ dishonesty and the potential for an implied bias challenge.” Slip op. at 11. In particular, CAAF finds that the military judge failed to consider important evidence:
In neither his conclusions of law nor his findings of fact did the military judge note, let alone analyze the import of, COL Forsythe’s statements regarding those who defend people accused of sexual assault (“He suggested that . . . defense counsel are ‘aggressive’ about finding something to remove members from the panel, ‘like the statements of POTUS,’ or words to that effect.”), or those accused of sexual assault (“He also stated that sometimes when he is sitting on panels he wants to jump over the bar and punch the guy, or words to that effect.”). He also failed to consider the cumulative effect of having three of Appellant’s panel members serve on the same panel under a specter of possible bias that they each recognized—and even talked about during trial—but did not disclose. The cumulative impact of these revelations in voir dire would have given defense counsel an even firmer basis for questioning the fairness and impartiality of the panel and challenging one or all of them for cause.
Slip op. at 12-13 (citations omitted). Yet Judge Ryan’s opinion goes further than just finding that the military judge erred, criticizing the military judge in two ways. First, she writes that:
the military judge failed to ask any of the three members why they concealed their SARB membership. This is an egregious oversight. . .
Slip op. at 13-14 (emphasis added). Then, in a footnote, she concludes that:
The military judge’s conclusion that Appellant might not have exercised his peremptory challenge in the event that his implied bias challenges failed, defies common sense.
Slip op. at 14 n.8 (emphasis added).
CAAF therefore “hold[s] that the military judge abused his discretion by not granting Appellant’s motion for a mistrial.” Slip op. at 15.
Abuse of discretion is one of the most deferential standards of review. The military judge went to significant effort to salvage this conviction, but Judge Ryan pulls no punches detailing the flaws in the military judge’s ruling. Yet the real blame lies with Colonel Forsythe, Colonel Ackermann, and Lieutenant Colonel Arcari; three senior officers who – by their dishonesty – denied Commisso the opportunity to explore whether they were truly impartial. Certainly they believed (or at least convinced themselves) that they were impartial. But “a panel member is not the judge of his own qualifications,” slip op. at 10 (quoting Albaaj, 65 M.J. at 170), and rightly so.
The Military Judge’s Benchbook provides preliminary instructions for members that include the following explanation of the voir dire and challenge process:
To determine if any grounds for challenge exist, counsel for both sides are given an opportunity to question you. These questions are not intended to embarrass you. They are not an attack upon your integrity. They are asked merely to determine whether a basis for challenge exists.
It is no adverse reflection upon a court member to be excused from a particular case.
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook, at 39 (2014). Presumably the members in this case were given these or similar instructions. Clearly, however, they were inadequate to instill the importance of candor to the tribunal during voir dire.
CAAF authorizes a rehearing.
• ACCA opinion
• Blog post: CAAF to review member disclosures
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis