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, [1] had the members answered material questions honestly at voir dire, [2] 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.

Case Links:
• 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

41 Responses to “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”

  1. DCGoneGalt says:

    Lesson of the day:  They should have been JAGs, then the court would have used initials and let them remain anonymous.

  2. Ummm no says:

    The full name of an Army JAG SVP is right there on page 2.

  3. Cloudesley Shovell says:

    BZ to Major Jessica Conn for promptly doing the right thing and informing defense counsel upon learning the information about the members.
    Shame on COL Forsythe, COL Ackermann, and LTC Arcari.  I’m afraid I’m more likely to find my emerald ring than these officers are to face any disciplinary consequences whatsoever for false official statement or perjury.
    Kind regards,

  4. SgtDad says:

    So, just me the long ago SNCO, wonders why this is not dereliction of duty. And a conspiracy to violate the the fundamental rights of a vulnerable subordinate. Not to mention perjury and utterly dishonorable in all respects.  No consequences?  Really?
    Someone should put this to Gen. Mattis.

  5. J.M. says:

    Will there be three upcoming article 32s for Article 131?

  6. K fischer says:

    She did the right thing, but I can’t say it was BZ worthy.  Did she oppose the defense’s motion for a mistrial?  BZ would have agreed with the motion, then gone back to her office to draft four new charge sheets with her being the accuser on three of them.  And we would have heard about this incident in the Army times.

  7. Bionic Barry Dylan says:

    I know this sounds like a ridiculous question when I say it out loud, but why were these officers even selected by the Convening Authority to serve on the panel?  The CA and/or servicing SJA surely knew that this would be a conflict.

  8. Isaac Kennen says:

    Maj Jessica Conn is to be praised. What she did was, of course, her duty, but even so, it was surely no easy thing to bring evidence to the attention of the court and the defense which undermines a case she had just recently won. It must have been especially tough when that error has nothing to do with the evidence upon which the accused was convicted. From her eyes, she must have been defending the right of a guilty man to nonetheless receive a fair trial. That’s noble stuff. 

  9. stewie says:

    MAJ(P) Conn is one of those rare folks who spent almost her entire CPT time as defense. And I do mean almost her entire time.

  10. DCGoneGalt says:

    Ummm no:  You don’t seem to understand the point.  Let me elaborate.  SVP was named . . . for doing the right thing.  The point is that if she had withheld Brady material or refused to comply with a judge’s order for in-camera review she would have been shielded.  Therefore, if the members were JAGs and were less than truthful they would have very likely been given initials and remained anonymous.  I hope I have made it crystal clear for you.

  11. k fischer says:

    You might be right.  I keep forgetting how bad it has gotten in military justice where TJAG’s commit UCI and military judges feel it is their job to cover for the Government in major indiscretions when through sheer luck they are uncovered. 
    We certainly should begin applauding the tenor for clearing his throat and elect Not Sure president because he watered the crops with water.

  12. Alfonso Decimo says:

    I can’t believe all three purposefully lied and I suspect the mindset is common across the services that the burden is on the litigators to delve more deeply in voir dire. Certainly, now that we know about this case, all panel members need to be specifically asked if they’ve ever served on a SARB. Pretrial discovery needs to include “the names of any panel members who have served on SARBs.” Perhaps the trial defense counsel in this case can be forgiven for assuming the question, “have you ever been involved in the sexual assault response system” should cover it, but now we know some panel members need a jolt to wake them up and listen to the questions.

  13. k fischer says:

    You should download Footnote 5 of the opinion into your cyborg brain databank.  C.A.A.F. says Bionic Barry Dylan is wrong.

  14. Bill Cassara says:

    Perhaps most distressing is that the ACCA opinion doesn’t even mention the issue, although it was obviously raised.

  15. Don Rehkopf says:

    At a minimum, there should have been an AR 15-6, investigation into the issue of why three FG officers were “deceptive” in their voir dire responses, if not making a False Official Statement. And I totally agree with Bill Cassara that ACCA’s failure to even address this issue is indeed distressing.
    Jess Conn is a damn good lawyer in all respects. She was detailed counsel on a very complex (factually and legally) GCM a few years back. Insuring fundamental fairness is deeply programed into her brain – regardless of which side of the aisle she’s sitting on in a courtroom. As Zeke noted above, doing the right thing in a case that she had gotten a conviction on, could not have been easy in the context of what transpired here. But, she did it, Kudos to her, and hopefully the various JAG schools will use this as a “teaching moment” in their ethics and prosecutorial responsibility sessions.

  16. Bionic Barry Dyaln says:

    k fischer,
    I didn’t intend to state that it was a per se prohibition from serving on the panel (just like being a Commander isn’t although it would lead to some extensive individual voir dire), though I see that my comment is poorly drafted and your interpretation of my comment is correct reading the plain language of my words…I shall correct my poor attempt to comment…
    What I should have said is that the opinion indicates the SJA was present at the SARB and therefore should have known these members attended the SARB and how the SARB was structured…so it created an obvious potential for real conflict.

  17. k fischer says:

    I agreed with your post. It should be a conflict per se, particularly when as part of the SARB where a case is discussed, the panel members hear about the facts of the case only from the complaining witness’s point of view.  The reason my post is so sardonic is that (1) footnote 5 surprised me a little, as I would have given great caution as to how situations like this would affect the appearance of a fair trial, and (2) I don’t particularly care for Barry Dylan, Organic or Bionic. 

  18. DCGoneGalt says:

    Bionic Barry Dylan & k fischer:  It isn’t a RCM 912(f) auto-disqualifier but isn’t it an “in-practice” auto-disqualifier for cause to have factual knowledge of the case prior to the admission of evidence?  I have never seen a member of a Family Advocacy Board or a commander-led military justice case update meeting group even get past that initial judge-asked question in voir dire when they even recall being in on a meeting where a case was discussed, even if they honestly can’t remember the facts. 
    Building on Bionic Barry Dylan’s point the commander led meeting usually are attended by the SJA so that is off that the name of the attendees would even be included as potential members for a convening authority to choose from whereas with groups like a Family Advocacy board it is a mix of attendees and an SJA, Chief of Justice, or trial counsel may have no idea who attended those.   

  19. (Former) ArmyTC says:

    Some of the vitriol I am reading here is striking. So many commenters screaming for perjury charges from the safety of the relative anonymity of their keyboards, yet they forget Hanlon’s Razor: Don’t attribute to malice what can be explained by stupidity.
    For those of you who have spent your careers in the ivory tower of the various JAG Corps, let me explain what I mean: When you ask a commander if they serve or have served a part in the sexual assault review process “attending the SARB” is not what they have in mind. That’s some meeting that as commanders, they have to attend. The smart commanders manage to send their XOs and deputies instead. They are not members of the SARB. Nor will they consider themselves as such.
    If any of you keyboard warriors disagree with me, and are subject to the code, I dare you: unmask yourselves and prefer a charge.
    Props to MAJ Conn for throwing a flag on the play. Sad to have lost her as an SVP. 

  20. Jayson megdanoff says:

    Former TC, challenge accepted. Your turn to unmask. 
    Enlisted soldiers get art 107 charges thrown at them all the time for simply panicking in a cid interrogation room and denying having had sex with an accuser. These 3 people were specifically asked if they had prior knowledge of the case and denied that they did.

  21. k fischer says:

    FAT C,

    For those of you who have spent your careers in the ivory tower of the various JAG Corps, let me explain what I mean: When you ask a commander if they serve or have served a part in the sexual assault review process “attending the SARB” is not what they have in mind. That’s some meeting that as commanders, they have to attend. The smart commanders manage to send their XOs and deputies instead. They are not members of the SARB. Nor will they consider themselves as such.

    Apparently, these three did not send their XO’s because they all the testified at the post trial 39(a) that they remembered at some point during the trial the facts of the case as shown at the SARB.
    That being said, you raise a good point.  This is what was shown on the slide at the SARB for appellant’s alleged vic:
    “Victim met the accused at physical therapy, and then went to dinner with him. She then agreed to spend the night at his apartment so he would not have to drive her home. After taking some medication and watching TV, victim fell asleep. She awoke to the accused touching her breasts and taking nude photos of her. She then fell asleep again and awoke again in the accused [sic] bed with the accused forcing her to perform oral sex on him. The accused then grabbed her neck and penetrated her vagina with his penis. Victim attempted to fight by scratching the accused with her fingernails, but was too weak from the medication to stop him. The accused admitted to these acts but stated that it was all consensual, and that the scratches were on his body because the victim “liked it rough.””
    I doubt that I would be able to answer that I know the facts of a case based on a charged specification that I read on a charge sheet for this incident, and have willfully attempted to deceive the questioner.  And, I can’t recall if the panel is ever instructed that if they become aware that one of their answers they have given during voire dire is false, then they have a duty to bring it to the attention of the military judge.  I don’t think they are.  Plus, some panel members are ignorant when it comes to all things military justice.
    So, this case provides some good guidance. 
    1. Convening Authorities should make efforts to not select Court-martial panel members who have served on the SARB previously for that post. 
    2. Military Judges should probably add a question to determine if a panel member has served on the SARB at the post previously.
    3.  The instructions should be amended to require panel members, if at some point they have determined an answer they have given during voire dire is false, to report it to the military judge.
    4.  DC’s should request info about who served on the SARB.
    I agree that MAJ Conn sounds like she was a great SVP who complied fully with her ethical responsibilities and ensured that the accused receives a fair trial.

  22. Lieber says:

    I think Kyle has this one right.

  23. Zachary D Spilman says:

    I can’t recall if the panel is ever instructed that if they become aware that one of their answers they have given during voire dire is false, then they have a duty to bring it to the attention of the military judge.  I don’t think they are.  Plus, some panel members are ignorant when it comes to all things military justice.

    Two thoughts on this.

    First, insofar as the preliminary instructions don’t make it clear that members should bring such things to the judge’s attention, the preliminary instructions need to change. I’m also in favor of preliminary instructions that inform the members that (1) there are no right answers to voir dire questions; (2) the questions are not trick questions, even if they seem to be; and (3) both sides have a peremptory challenge, so a member really could be excused for no reason at all. Such instructions would help members realize that there’s no reason to be cute.

    Second, these colonels were not ignorant about military justice. Rather, COL Forsythe knew that the SARB was a problem. That’s probably why he spoke to the other two during deliberations. Slip op. at 5. It’s definitely why he “suggested that the incident review slides should be presented differently. . .” Slip op. at 5. He also recognized the importance of “get[ting] the bad guys the correct way.” Slip op. at 5. That’s someone who reminds me of Juror #6 from The Devil’s Advocate (clip).

  24. Alfonso Decimo says:

    I agree with (Former) ArmyTC. The colonels were just being stupid. My additional comment (see above) is that trial defense counsel could have left no room for stupid (or pretend-stupid) and they are on notice to make sure the questions get asked. Get comfortable everybody!; voir dire will take some time from now on.

  25. Matt says:

    From the case: “According to the acting installation Sexual Assault Response Coordinator (SARC), COL Forsythe also suggested that “he might have felt a little bit biased sitting on a court-martial panel already having some knowledge of the case.””
    So three senior officers sat in at least four meetings where the case was discussed, and at least one of them knew he had some knowledge of the case.  CAAF criticized their dishonesty.  Yet, according to you there is nothing to see here and how dare people question their integrity.  Just because they seem to be government hacks doesn’t mean they should get a free pass.  At a minimum, their CDR should direct a 15-6 to determine if they intentionally lied.  If not, then maybe the CDR should reevaluate their suitability for command if they are attending SARB meetings and paying so little attention that they do not even recognize a case they have been briefed FOUR times on.

  26. stewie says:

    Don’t know that I agree that SJAs usually or even often sit on SARBs. I had two different SJAs as a COJ and I sat on the SARB my entire time there, not either SJA or DSJA. The rare time I was on leave, my acting COJ sat.

  27. Tami a/k/a Princess Leia says:

    On page 37 of the Military Judge’s Benchbook:

    The prosecution is ready to proceed with trial in the case of the United States versus (PVT) (   ) __________. MJ:  The members of the court will now be sworn.  All persons in the courtroom, please rise. TC:  Do you swear or affirm that you will answer truthfully the questions concerning whether you should serve as a member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trials by court-martial, the case of the accused now before this court; and that you will not disclose or discover the vote or opinion of any particular member of the court upon a challenge or upon the findings or sentence unless required to do so in the due course of law, so help you God? MBRS:  (Respond.) MJ:  Please be seated.  The court is assembled.

    Pesky thing that oath is.  Sarcasm.  Extremely troubling that these 3 senior officers talked amongst themselves and made a conscious choice not to disclose their “discovery” that they did in fact, have prior knowledge of this particular case.  I know that “discovering” during deliberations, that you lied under oath before the trial even began, is such an inconvenient time to bring your “discovery” to the MJ’s attention, and it’s inconvenient to declare mistrial and someone else will have to deal with the mess you created, but what the heck, it’s only 1 year of jail and a punitive discharge and a criminal record for the rest of your life, right?  Sarcasm. 
    Troubling that none of these 3 officers disclosed they attended SARB meetings, even though common sense indicates attending SARB meetings means you are “involved” in the “sexual assault response system.”  Troubling that the MJ didn’t grant a mistrial.  Troubling that ACCA didn’t address the issue.  Whole lot of extremely troubling things about this case that it even reached CAAF.
    I have no doubt these 3 officers have counseled subordinates for lying about stuff, and telling them if there is “even a question about being untruthful, or the possibility of being perceived as untruthful, err on the side of caution.  If you lose your integrity, you’re done.”  These 3 officers lost their integrity, and I hope at the very least, their raters and senior raters have the personal courage to rewrite their OERs and give them referred OERs.  Their GOs should be handing them reprimands.  AND these panel members convicted appellant of making a false official statement?  Boy, that’s the pot calling the kettle black.
    (Former) TC, you’re upset that people are calling for the court-martial of these 3 officers for perjury because…?  This goes beyond just stupidity.

  28. Vulture says:

    Retire them as two LTC’s and a MAJ.  It’s the right thing to do.

  29. Tami a/k/a Princess Leia says:

    Doing some internet searching, it appears LTC Arcari is already retired.  Since the statute of limitations has passed on Article 15, the only way she can be held accountable (other than in the court of public opinion) is to be returned to active duty and court-martialed.  COL Ackermann appears to be stationed in San Antonio.  Forsythe would require more research.  Charges could include perjury, false official statement/swearing, conspiracy to commit FOS/FS, dereliction of duty, obstruction of justice, conduct unbecoming an officer.  I think any active duty or retired JAG who reads through the transcript, briefs, and opinions would be justified in preferring charges against all 3 officers.
    And these kinds of situations should lead to overruling Feres.

  30. Alfonso Decimo says:

    OK. You convinced me there’s enough evidence of wrongdoing by the colonels that there should have been some sort of formal inquiry, like a Board of Inquiry. Actually, yes, I was totally wrong. The Army should have held them accountable (after due process) for the offenses listed above by Tami.

  31. stewie says:

    At worst, it was dereliction of duty IMO because even if they were unsure, they knew attendance at the SARB was something they had a duty to raise and inform that court about. But the COJ or whomever was sitting at these SARBs knew they were there, knew they were on panels, and yet said nothing, not just in this case but any others they sat on. 

  32. stewie says:

    At best, not at worst.

  33. Tami a/k/a Princess Leia says:

    BZ worthy would be if MAJ(P) Conn prefers charges against those still on active duty, and convinces someone to yank the retired LTC back on active duty for court-martial.

  34. Christian Deichert says:

    Some fault lies with the installation SARC and whichever judge advocate attends the SARB.  The SARB is supposed to be victim focused: how are they doing, are they getting treatment, that sort of thing.  It is not supposed to go into the facts of a case.  That’s supposed to be briefed up front as part of the rules of engagement.

  35. Ed says:

    I suggest  given the mission of fighting wars of some variety that overruling Feres would be a dramatic step. 

  36. Tami a/k/a Princess Leia says:

    Ed, absolutely would be a dramatic step, and I’m not looking for a complete over-hauling of the Feres doctrine.  What I would support is giving an accused the right to sue these officers personally for putting him through years of limbo with their lies.  Would also support giving accused the right to sue for prosecutorial misconduct (i.e. Stellato, Salyer) and UCI (Wright).  SOMETHING needs to change to get people’s attention that this conduct is unacceptable, and the people responsible will be held directly accountable.

  37. Ed says:

    You are correct in spirit but even in the civilian world prosecutors are not held accountable through lawsuits. In some jurisdictions even if an attorney commits fraud as part of civil litigation he cannot be sued. (An attorney can be sued for non litigation activities) He can be disbarred and otherwise sanctioned. I suggest wayward prosecutors be grieved in the states they are licensed in. Eventually someone will get a harsh penalty. That will have some effect. I also contend it would be useful to name wayward TC’s so they can be personally humiliated to the pubic and their peers. Given the mission  even a narrow exception to Ferres  could cause great problems. Its probably not worth the risk of opening the floodgate.

  38. Vulture says:

    Just to give a sense of how fragile the sense of a fair jury is one can look at the case of the big pharma exec Shrkeli.  Impossible Jury Selection.  This is a man who is so hated that they can’t find enough impartial members.  I don’t know a thing about him but the words “Throat punch” come to mind every time I see his picture.
    So the discussion is well placed about what to do about ensuring an impartial panel in the military trials.  Smaller society, command picked, and the different prevention programs: this kind of issue has to stay in the public eye as much as possible, so keep up the good work everybody.

  39. Alfonso Decimo says:

    Unless, IDK, it’s some kind of beverage made with Kool Aid and Jagermeister or something, it’s bad to think about throat punch when you see pictures of people. That’s no way to go through life.

  40. Vulture says:

    Sounds like you drank the cool aid a long time ago.

  41. Isaac Kennen says:

    I don’t know that this case is a basis for challenging the Feres doctrine.  It seems unlikely that Commisso would have a tenable 1983 against the federal officers who lied in order to remain on his court.  At least not on the facts as they exist presently. After all, he’s still subject to a rehearing.  If the government opts not to try him, or better yet, if he is retried and acquitted, then that might be a different story.  If he were acquitted at a rehearing, and if he is married, then I also would think his spouse might be able plead out a prima facie 1983 case for year’s worth of loss of consortium against those three federal officers, even if the accused is himself barred from suit.