The #10 Military Justice Story of 2017 is CAAF’s decision in United States v. Commisso, 76 M.J. 315 (C.A.A.F. Jun. 26, 2017) (CAAFlog case page).

Army Sergeant First Class (E-7) Commisso was a somewhat unsympathetic appellant. In 2013 he became romantically – or, perhaps, unromantically – involved with a Marine Private First Class (E-2) he met while undergoing physical therapy. His case had many of the hallmarks of a modern politicized military sexual assault prosecution: rank disparity, a he-said/she-said allegation, and even distribution of revealing photos of the alleged victim.

Before the case was tried in 2014, the allegations were repeatedly briefed during monthly meetings of a local Sexual Assault Review Board (SARB). CAAF described the purpose of the SARB as “to ensure that sexual assault victims received their legal entitlements throughout the court-martial process,” and the court observed that the “briefings contained only the putative victim’s version of the alleged criminal acts.” 76 M.J. at 319. Three SARB participants were selected to be part of the ten-member general court-martial panel that heard Commisso’s case, and they remained on the panel when it convicted Commisso of numerous offenses and sentenced him to confinement for one year, reduction to E-1, and a bad-conduct discharge.

That those three members were selected for, and remained part of, the panel after such one-sided exposure to the allegations was troubling in its own right, but there was something worse. The three members (two Colonels and a Lieutenant Colonel) concealed their involvement in the SARB and their prior knowledge of the case until after the trial was over.

All of the members of Commisso’s court-martial were questioned during voir dire about their knowledge of the facts of the case and about their involvement in the military’s sexual assault response system. All of the members denied any such knowledge or involvement. For the three colonels, those answers were false. CAAF used various terms to describe those answers, none of them normally associated with Army field grade officers: “inaccurate,” “dishonest,” “lack of candor,” and “at least the possibility of intentional concealment.” 76 M.J. at 322-324.

CAAF also took the extraordinary step of identifying the three colonels by name: “COL Forsythe, COL Ackermann, and LTC Arcari.” 76 M.J. at 318.

Alone that’s enough to get the case special attention, but CAAF’s June 26, 2017, decision turned on something more.

After the trial of Commisso’s case, Colonel Forsythe returned to the SARB and complained about the way SARB proceedings were conducted:

During the SARB, COL Forsythe expressed concern about how the incident review slides were being presented. He indicated that he had served on court-martial panels, and he was concerned that the incident review slides might “prejudice” him, or words to that effect. He said that it is his role as a panel member to be “objective,” or words to that effect. He indicated that when he heard mention of a Marine PFC [at Appellant’s court-martial] he recognized the case [from the SARB review slides]. He then indicated that during [Appellant’s] court-martial the lawyers ask[ed] the members if they kn[ew] about the case. He then pondered, “Did I lie? Maybe I did. I don’t think I did,” or words to that effect….

[COL Forsythe] 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.

76 M.J. at 320 (marks in original) (quoting record). This was reported to Commisso’s defense counsel, who moved for a mistrial. The military judge ordered a post-trial hearing where the three colonels were questioned. During that questioning, “COL Forsythe stoutly maintained that he himself was ‘completely objective’ at trial,” 76 320. He did so despite his admitted desire to jump over the bar and punch the guy.

The military judge found all of this insufficient to show actual bias or to support an implied bias challenge, and the Army CCA’s review didn’t address the issue. CAAF, however, was disturbed. Writing for a unanimous court, Judge Ryan excoriated the military judge’s failure to ask certain questions of the three colonels as “an egregious oversight,” 76 M.J. at 324, and she remarked that the military judge’s reasoning “defies common sense.” Id. at n.8. She wrote that “the basic integrity of the court-martial process was undermined.” 76 M.J. at 323. And CAAF reversed the convictions, holding that the military judge abused his discretion when he denied the defense request for a mistrial.

Abuse of discretion is one of the most deferential standards of review, and “a mistrial is an unusual and disfavored remedy.” United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003). These factors make the reversal in Commisso the most unlikely of outcomes.

But there’s another aspect to what happened in Commisso, and one more person named in the opinion, that ensured the case became part of our Top Ten list.

Colonel Forsythe’s post-trial comments to the SARB were reported to Commisso’s defense counsel by a prosecutor. A Special Victim Prosecutor; one of 24 hand-selected trial counsel who focuses on sexual assault prosecutions. It was undeniably the right thing – professionally, ethically, and morally – for the prosecutor to make that report. And while it’s generally a bad thing for a prosecutor to be identified by name in a judicial opinion reversing a conviction, CAAF’s identification of this prosecutor is a clear sign of well-deserved approval.

“Special Victim Prosecutor (SVP) MAJ Jessica Conn.” 76 M.J. at 318. Now LTC Conn.

2 Responses to “Top Ten Military Justice Stories of 2017 – #10: United States v. Commisso”

  1. David A Higley says:

    Undeniably the correct result. Entirely predictable given the false response in voir dire. The amazing thing is the motion for mistrial was denied. It would have been so easy to grant the motion for mistrial and start over at the command level rather than wave the dirty laundry all over the military community. 

  2. Scott says:

    Undeniably the correct result. Entirely predictable given the false response in voir dire. The amazing thing is the motion for mistrial was denied. It would have been so easy to grant the motion for mistrial and start over at the command level rather than wave the dirty laundry all over the military community. 

    David, that is so true.  I will never understand the government mindset that “winning” a hard issue at the trial level is a win at all, when all it really does is jeopardize what may otherwise be a just conviction on appeal.  For example, TCs fighting vigorously to keep out 412 material that clearly should be admitted under the rule, or trying to rehabilitate panel members who obviously should not sit on a given case.  
    It’s admittedly harder in a case like this, where conceding would mean a mistrial, but even in an outlier situation such as that, a re-trial is not nearly as difficult immediately following the first trial as it is years down the line. 
    Of course we all know that TCs, CoJs, and SJAs are almost never held accountable for  results on appeal, as they have long sense received their OERs and PCSed. 
    To some extent, the same applies to MJs, although in terms of incentives, I think MJs are more sensitive to appellate treatment than are TCs.