United States v. Commisso , 76 M.J. 315 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jason M. COMMISSO, Sergeant First Class
United States Army, Appellant
No. 16-0555
Crim. App. No. 20140205
Argued December 6, 2016—Decided June 26, 2017
Military Judges: Jeffery D. Lippert and David L. Conn
For Appellant: Captain Joshua G. Grubaugh (argued); Eu-
gene R. Fidell, Esq. (on brief); Captain J. David Hammond.
For Appellee: Captain Tara O’Brien Goble (argued); Lieu-
tenant Colonel A. G. Courie III and Major Michael E. Korte
(on brief); Captain Scott L. Goble.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
OHLSON, and SPARKS, joined.
_______________
Judge RYAN delivered the opinion of the Court.
An officer panel sitting as a general court-martial con-
victed Appellant, contrary to his pleas, of the following: one
specification each of violating a lawful general regulation,
making a false official statement, indecent viewing of a per-
son’s private area, indecent recording of a person’s private
area, wrongful distribution of a recording of a person’s pri-
vate area, and obstruction of justice, and two specifications
of abusive sexual contact, in violation of Articles 92, 107,
120, 120c, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 907, 920, 920c, 934 (2012). The
panel sentenced Appellant to a bad-conduct discharge, con-
finement for one year, forfeiture of all pay and allowances,
and reduction to grade E-1. The convening authority ap-
proved the findings and sentence as adjudged.
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
After trial, Appellant discovered that three of the ten
panel members who sat on his court-martial panel had regu-
larly attended Sexual Assault Review Board (SARB) meet-
ings, including at least four meetings prior to his court-
martial where his case was discussed from the putative vic-
tim’s perspective. The three members had failed to disclose
either their knowledge of the case or their participation in
the SARB in response to voir dire questions designed to elic-
it this material information. This lack of candor during voir
dire was discovered from the proverbial horse’s mouth: one
of the panel members alerted the SARB to his concern that
serving on both the SARB and a court-martial panel might
threaten the fairness, or the appearance of fairness, of the
panel, and he expressed what can most charitably be charac-
terized as negative views about those who serve as defense
counsel or who are accused of sexual assaults. Special Vic-
tim Prosecutor (SVP) MAJ Jessica Conn relayed this infor-
mation to Appellant’s defense counsel and defense counsel
filed a post-trial motion for a mistrial, arguing that these
three panel members were not impartial. The military judge
held a post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), hearing but denied the motion.
On appeal, the United States Army Court of Criminal
Appeals (ACCA) dismissed the guilty findings for the specifi-
cations of violating a lawful general regulation and making
a false official statement. United States v. Commisso, No.
ARMY 20140205, 2016 CCA LEXIS 277, at *14–15, 2016 WL
1762059, at *5 (A. Ct. Crim. App. Apr. 29, 2016). The ACCA
affirmed the remainder of the findings and sentence as ad-
judged.1 Id. at *15, 2016 WL 1762059, at *5. We subsequent-
ly granted Appellant’s petition to review the following issue:
Whether the military judge abused his discretion in
denying the defense’s post-trial motion for a mistri-
al, thereby violating Appellant’s right to have his
case decided by a panel of fair and impartial mem-
1Appellant raised the issue of the impartiality of the panel
members, but the Court of Criminal Appeals declined to address
it.
2
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
bers, because three panel members failed to dis-
close that they had prior knowledge of the case.2
While mistrials are disfavored, United States v. Diaz,
59 M.J. 79, 90 (C.A.A.F. 2003), under the facts of this case
we hold that the military judge abused his discretion in
denying Appellant’s motion for a mistrial by incorrectly fo-
cusing on the subjective intent of the members in failing to
disclose material information, see United States v. Albaaj,
65 M.J. 167, 170 (C.A.A.F. 2007), and by failing to consider
important facts that were relevant to the question whether
Appellant had a valid basis for challenging the members for
cause. See United States v. Mack, 41 M.J. 51, 55 (C.M.A.
1994).
I. FACTS
Before they were questioned on voir dire, three of the ten
members on Appellant’s court-martial panel—COL For-
sythe, COL Ackermann, and LTC Arcari—regularly attend-
ed monthly SARB meetings that discussed pending sexual
assault cases. These meetings included all brigade com-
manders, as well as a sexual assault response coordinator,
victim advocate, army criminal investigation command, staff
judge advocate, provost marshal, chaplain, sexual assault
clinical provider, and other related staff. The purpose of the-
se meetings was to ensure that sexual assault victims re-
ceived their legal entitlements throughout the court-martial
process. The meetings began with a discussion of sexual as-
sault prevention, followed by a review of the details of pend-
ing sexual assault cases. SARB members were briefed on the
facts of each allegation, including the victim’s rank, without
identifying the victim by name. These briefings contained
only the putative victim’s version of the alleged criminal
acts.
2 We also granted review to determine whether one of the
judges on the CCA panel was constitutionally or statutorily barred
from sitting on the panel because of his simultaneous appointment
as a judge on the United States Court of Military Commission Re-
view (USCMCR). Because the CCA issued its judgment before the
judge’s appointment to the USCMCR, that issue is moot. United
States v. Dalmazzi, 76 M.J. 1, 2 (C.A.A.F. 2016).
3
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
These SARB meetings reviewed Appellant’s case multi-
ple times. Every time Appellant’s case came up for review, a
PowerPoint slide described unchallenged accusations by Ap-
pellant’s alleged victim this way:
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 medica-
tion 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 ac-
cused 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.”
During voir dire, all of the members of Appellant’s panel
were asked the following questions: (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 gen-
eral?”; and, importantly, (4) “Have you ever been a unit vic-
tim advocate, a sexual assault response coordinator, or oth-
erwise involved in [the] sexual assault response system?”
Notwithstanding their repeated exposure to Appellant’s case
through their participation in the SARB—an evident part of
the sexual assault response system—the three panel mem-
bers responded negatively to each question. Because of this
failure to disclose, the defense counsel had no reason to
probe into any potential bias toward sexual assault victims
or against the accused arising out of their participation in
the SARB or their exposure to the victim’s unrebutted alle-
gations against Appellant. Instead, given their negative an-
swers to these questions, defense counsel did not challenge
the three members for cause or use his peremptory chal-
lenge.
4
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
The panel subsequently convicted Appellant. After trial,
COL Forsythe unilaterally alerted the SARB to his concern
that serving on both the SARB and a court-martial panel
might threaten the fairness, or the appearance of fairness, of
the panel. SVP MAJ Conn informed defense counsel of COL
Forsythe’s remarks:
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 ef-
fect. He indicated that when he heard mention of a
Marine PFC [at Appellant’s court-martial] he rec-
ognized 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 de-
fense counsel are “aggressive” about finding some-
thing to remove members from the panel . . . He al-
so 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.3 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.
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.” (Empha-
sis added.)
Upon discovery of COL Forsythe’s participation in the
SARB, the defense moved for a mistrial. The military judge
held a post-trial Article 39(a), UCMJ, hearing to determine
if COL Forsythe, COL Ackermann, and LTC Arcari provided
3 COL Forsythe’s comments about wanting to “punch the guy”
were not specifically about Appellant’s case.
5
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
inaccurate answers to questions on voir dire. Defense coun-
sel asked COL Forsythe whether, in his opinion, “the way
the SARB meetings were done and the way the information
was presented previously . . . had a potential to taint panel
members?” COL Forsythe replied:
It could. It could. . . . In the very next SARB I had
to go back and say “Look, you guys need to remove
this so there’s no potential that the system appears
to be slanted one direction or the other. There
needs to be no appearance of that. We have to be
balanced.” I said that in the meeting.
He testified that the SARB meetings were “geared towards
the victim” and “all about resourcing the victim’s needs fol-
lowing an incident,” and that he believed “it was inappropri-
ate to present that information in the SARB if we’re going to
be fair to both sides.” He also testified that he raised his
concerns at the SARB meeting after trial because he did not
“want the system to be questioned. It’s got to be fair for both
sides.” Nevertheless, COL Forsythe stoutly maintained that
he himself was “completely objective” at trial. Neither de-
fense counsel nor the military judge asked COL Forsythe
why he concealed his participation in the SARB. Nor was he
asked about his intemperate comments regarding those who
serve as defense lawyers or who are accused of sexual as-
sault.
COL Ackermann testified that, during the deliberations
in Appellant’s trial, he remembered reviewing the facts of
Appellant’s case at the SARB meetings. COL Ackermann
also revealed that COL Forsythe spoke to him about the
SARB during a break in deliberations. COL Ackermann in-
sisted, however, that he remained impartial during delibera-
tions.
Finally, LTC Arcari testified that, at some point during
the trial, COL Forsythe spoke with her about how he re-
membered Appellant’s case from the SARB. At this point she
remembered that she had been exposed to Appellant’s case
by the SARB PowerPoint slides. As with COL Forsythe, nei-
ther COL Ackermann nor LTC Arcari were asked why they
failed to disclose their SARB membership during voir dire.
Following the Article 39(a), UCMJ, hearing, the military
judge found that the evidence was insufficient to show actu-
6
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
al bias, and found “no basis to grant an implied bias chal-
lenge of any member based on their exposure to information
at the SARB attributable to the accused’s case.” He ex-
plained: “A potential member’s exposure to such vague in-
formation [as that presented at the SARB meetings] could
not objectively undermine public confidence in COL For-
sythe’s or any other member’s objectivity as a court mem-
ber.” While he recognized the liberal grant mandate, his
findings of fact and conclusions of law failed to consider: (1)
any implied bias that might have resulted from the mem-
bers’ participation in the SARB;4 (2) COL Forsythe’s explicit-
ly negative statements at the SARB regarding those who
serve as defense counsel and those who are accused of sexual
assault; or (3) the cumulative appearance of unfairness re-
sulting from three panel members in these circumstances
sitting on the same panel together. Accordingly, the military
judge denied defense counsel’s motion for a mistrial. The
ACCA affirmed the military judge’s ruling on the motion
without discussion. Commisso, 2016 CCA LEXIS 277, at
*14–15, 2016 WL 1762059, at *5.
II. DISCUSSION
“A military judge has discretion to ‘declare a mistrial
when such action is manifestly necessary in the interest of
justice because of circumstances arising during the proceed-
ings which cast substantial doubt upon the fairness of the
proceedings.’ ” United States v. Coleman, 72 M.J. 184, 186
(C.A.A.F. 2013) (quoting Rule for Courts-Martial
(R.C.M.) 915(a)). A military judge abuses his discretion
when: (1) he predicates his ruling on findings of fact that are
not supported by the evidence of record; (2) he uses incorrect
legal principles; (3) he applies correct legal principles to the
facts in a way that is clearly unreasonable, United States v.
4 The military judge ventured only a conclusory remark that
participation in the SARB did not result in implied bias: “No evi-
dence suggests [COL Forsythe’s] involvement in the SARB in any
way affected his impartiality.” But by evaluating whether partici-
pation in the SARB “affected or influenced” the members’ view of
the evidence, he tested for actual bias, rather than implied bias—
whether “the public [would] perceive that the accused received
something less than a court of fair, impartial members.” United
States v. Townsend, 65 M.J. 460, 463 (C.A.A.F. 2008).
7
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010), or (4) he fails to con-
sider important facts. See United States v. Solomon, 72 M.J.
176, 180–81 (C.A.A.F. 2013).
“As a matter of due process, an accused has a constitu-
tional right, as well as a regulatory right, to a fair and im-
partial panel.” United States v. Wiesen, 56 M.J. 172, 174
(C.A.A.F. 2001) (citing Mack, 41 M.J. at 54). “Indeed,
‘[i]mpartial court-members are a sine qua non for a fair
court-martial.’ ” Id. (quoting United States v. Modesto,
43 M.J. 315, 318 (C.A.A.F. 1995)).
The right to a trial by an impartial [panel] lies
at the very heart of due process. [O]ur common-law
heritage, our Constitution, and our experience in
applying that Constitution have committed us ir-
revocably to the position that the criminal trial has
one well-defined purpose—to provide a fair and re-
liable determination of guilt. That purpose simply
cannot be achieved if the [panel’s] deliberations are
tainted by bias or prejudice. Fairness and reliabil-
ity are assured only if the verdict is based on calm,
reasoned evaluation of the evidence presented at
trial.
Smith v. Phillips, 455 U.S. 209, 224–25 (1982) (Marshall, J.,
with whom Brennan, J., and Stevens, J., joined, dissenting)
(second alteration in original) (internal quotation marks
omitted) (citations omitted).
R.C.M. 912(f)(1) requires impartiality on the part of pan-
el members and provides for their removal if their impartial-
ity is jeopardized: “A member shall be excused for cause
whenever it appears that the member: . . . [s]hould not sit as
a member in the interest of having the court-martial free
from substantial doubt as to legality, fairness, and impar-
tiality.” R.C.M. 912(f)(1)(N). Such substantial doubt arises
when, “in the eyes of the public, the challenged member’s
circumstances do injury to the ‘perception [or] appearance of
fairness in the military justice system.’ ” United States v.
Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (quoting United
States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006)); accord
United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F.
2000) (“The general focus is ‘on the perception or appearance
of fairness of the military justice system.’ ” (quoting United
States v. Schlamer, 52 M.J. 80, 93 (C.A.A.F. 1999))).
8
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
Voir dire is a critical tool for ensuring that the accused is
tried by an impartial trier of fact—the “touchstone of a fair
trial.” McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 554 (1984). Voir dire protects an accused’s
right to an impartial trier of fact “by exposing possible bias-
es, both known and unknown, on the part of potential ju-
rors.” Id. “The necessity of truthful answers by prospective
[members] if this process is to serve its purpose is obvious.”
Id. Although these passages refer to the civilian right to an
impartial jury under the Sixth Amendment, they hold equal-
ly true with regard to servicemember rights under the Fifth
Amendment and the Rules for Courts-Martial. See Albaaj,
65 M.J. at 168 (“ ‘Where a potential member is not forthcom-
ing . . . the process may well be burdened intolerably.’ ” (al-
teration in original) (quoting Mack, 41 M.J. at 54)). Without
honest disclosures during voir dire, an accused is hamstrung
in challenging potentially biased members for cause. See
Mack, 41 M.J. at 54; see also United States v. Colombo,
869 F.2d 149, 151 (2d Cir. 1989).
We recognize that not every contretemps during voir dire
rises to the level of a constitutionally unfair trial, see Smith,
455 U.S. at 217 (“[D]ue process does not require a new trial
every time a juror has been placed in a potentially compro-
mising situation . . . .”), and that “[t]he power to grant a mis-
trial should be used with great caution, under urgent cir-
cumstances, and for plain and obvious reasons.” R.C.M.
915(a) Discussion; see Diaz, 59 M.J. at 90. Responses to voir
dire need not be pristine to satisfy the constitutional mini-
mum of a fair trial, McDonough Power Equip., Inc., 464 U.S.
at 555 (“To invalidate the result of a … trial because of a ju-
ror’s mistaken, though honest response to a question, is to
insist on something closer to perfection than our judicial sys-
tem can be expected to give.”), or even R.C.M. 912’s re-
quirement that a court-martial appear fair to the observing
public. See United States v. Lake, 36 M.J. 317, 323 (C.M.A.
1993) (“Although we do not condone such reticence [to an-
swer voir dire questions] by these members . . . they [did
not] purposefully disregard[] the judge’s questions or diso-
bey[] any other instruction given by the judge in this case.”).
Nevertheless, the law is well settled that failure to grant
a motion for a mistrial is an abuse of discretion if, had the
9
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
members answered material questions honestly at voir dire,
defense counsel would have had a valid basis to challenge
them for cause. See Mack, 41 M.J. at 55 (quoting
McDonough Power Equip., Inc., 464 U.S. at 556). We con-
clude that under this framework, the military judge in this
case abused his discretion.
A question is “material” if it has “some logical connection
with the consequential facts” of the case, or is “[o]f such a
nature that knowledge of the item would affect a person’s
decision-making.” Albaaj, 65 M.J. at 170 (alteration in origi-
nal) (internal quotation marks omitted) (citation omitted).
No one disputes that the voir dire questions at issue here
were “material.” Defense counsel asked the members wheth-
er they had “any prior knowledge of the facts or events al-
leged,” had “heard about any of the facts of this case,” had
been part of a group that “deals with issues of sexual as-
sault,” or were “involved in [the] sexual assault response
system.” The defense counsel probed these subjects to de-
termine whether any of the panel members had prejudged
Appellant’s case or might be partial toward sexual assault
victims or against those accused of sexual assault, attributes
that could “affect [their] decision-making” on the panel. Cf.
Albaaj, 65 M.J. at 170.
Next, a panel member is dishonest when he fails to ex-
hibit “complete candor.” Id. at 169. The military judge fo-
cused on the fact that COL Forsythe “harbored no dishonest
or fraudulent intent” when he answered these material
questions incorrectly. But the test for member dishonesty is
not whether the panel members were willfully malicious or
intended to deceive—it is whether they gave objectively cor-
rect answers. Id. at 170 (“While the DuBay military judge
found that Melcher’s ‘lack of disclosure was not done in bad
faith,’ that is not the proper inquiry.”). 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 im-
portance 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.
10
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
Here, three of the ten panel members gave inaccurate
statements during voir dire and failed to correct them dur-
ing trial. This satisfied the first requirement for a mistrial
set forth in Mack, and the military judge erred in concluding
otherwise.
The final question is whether, had the members an-
swered honestly, their responses “would have provided a val-
id basis for a challenge for cause.” Mack, 41 M.J. at 55 (in-
ternal quotation marks omitted) (quoting McDonough Power
Equip., Inc., 464 U.S. at 556). The purpose of this inquiry is
to determine whether a panel member’s dishonesty at voir
dire “burdened [the court-martial] intolerably” by preventing
the accused from exercising a challenge for cause. Id. It is
the role of the military judge to conduct this analysis in the
first instance in a post-trial hearing. Cf. id. (“[T]he normal
procedure is to remand the issue to the trial court for [a
DuBay hearing and a] resolution, because appellate tribu-
nals are a poor substitute for trial courts in developing a
record or for resolving factual controversies.”). We conclude
that the post-trial hearing failed to adequately analyze and
investigate the panel members’ dishonesty and the potential
for an implied bias challenge.
Had the members honestly answered the questions at
voir dire, Appellant would have had at least a valid basis for
challenging one or more of the panel members for cause.
Under R.C.M. 912(f)(1)(N), a member “shall be excused” for
implied bias “whenever it appears that the member . . .
[s]hould not sit as a member in the interest of having the
court-martial free from substantial doubt as to legality, fair-
ness, and impartiality.” Wiesen, 56 M.J. at 174. “Substantial
doubt” exists where the presence of a member on the panel
would cause the public to think “that the accused received
something less than a court of fair, impartial members,” in-
juring the public’s perception of the fairness of the military
justice system. See, e.g., Townsend, 65 M.J. at 463. Had de-
fense counsel known that three of the ten panel members
met monthly as part of a one-sided victim advocacy group to
discuss pending sexual assault cases and victims’ legal
rights—including Appellant’s case—defense counsel would
have undoubtedly probed their views on a variety of areas
more deeply. Had he received accurate answers from those
11
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
three panel members, defense counsel could have argued
that the presence of even one member serving on a SARB—
let alone three—raised “substantial doubt[s]” about the per-
ceived impartiality of the military justice system.5 Wiesen,
56 M.J. at 174. Because the panel members’ answers were
inaccurate, however, defense counsel had no such opportuni-
ty at voir dire.
The basic integrity of the court-martial process was un-
dermined even further when the military judge failed to
conduct an adequate post-trial hearing to examine the full
extent of their lack of candor and to remedy the harm it
caused. First, he neglected to consider facts that should have
been weighed heavily in resolving the question whether the
defense established actual or implied bias. Cf. Solomon,
72 M.J. at 180 (“[T]he problem is that the military judge al-
together failed to mention or reconcile Appellant’s important
alibi evidence . . . .”). Second, he failed to adequately investi-
gate the scope and causes of the panel members’ failure to
accurately answer straightforward questions at voir dire. Cf.
United States v. Baker, 638 F.2d 198, 201 (10th Cir. 1980)
(“[T]he searching rigor of the court’s examination must be
tailored to fit the circumstances of the case upon which the
jurors will sit to ensure that the jurors are competent and
impartial.”).
First, the military judge failed to consider important
facts, contained in the motion for a mistrial, indicating
member bias. In neither his conclusions of law nor his find-
ings of fact did the military judge note, let alone analyze the
5 To be clear, we do not hold that participation on a SARB or
similar entity, or passing knowledge of the facts of a case, consti-
tutes actual or implied bias. See Lake, 36 M.J. at 324 (“ ‘[J]urors
need not . . . be totally ignorant of the facts and issues involved’ in
the case before them.” (alteration in original)); cf. United States v.
Wood, 299 U.S. 123, 149–50 (1936) (“It is said that particular
crimes might be of special interest to employees in certain gov-
ernmental departments, as, for example, the crime of counterfeit-
ing, to employees of the treasury. But . . . such cases of special in-
terest [are] exceptional.”). Rather, we require that members be
forthcoming in response to voir dire questions so that the defense
can conduct a meaningful voir dire, expose known and unknown
biases or impartiality, and, where valid, raise contemporaneous
challenges for cause.
12
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
import of, COL Forsythe’s statements regarding those who
defend people accused of sexual assault (“He suggested
that . . . defense counsel are ‘aggressive’ about finding some-
thing to remove members from the panel, ‘like the state-
ments 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.”). Cf. Napolitano, 53 M.J. at
167 (holding that the military judge did not abuse his discre-
tion by rejecting a challenge for cause against a member who
called lawyers “Freelance guns for hire (aka Johnies [sic]
Cochran)” because the ensuing dialogue between him and
the military judge “reflect[ed] an evolution of [his] thinking
on this question”). 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. Cf. United States v. Pope, 69 M.J. 328, 335
(C.A.A.F. 2011) (“[A] number of errors, no one perhaps suffi-
cient to merit reversal, in combination [may] necessitate the
disapproval of a finding.” (internal quotation marks omitted)
(citation omitted)). The cumulative impact of these revela-
tions 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.
Second, the military judge did not fulfill his obligation to
inquire into potential bias that was raised by defense coun-
sel’s motion for a mistrial.6 Cf. United States v. Frank, 901
F.2d 846, 849 (10th Cir. 1990) (“The trial court has the duty
in a criminal case to properly voir dire prospective jurors to
ensure the [constitutional] guarantee of an impartial jury is
met.”). In particular, the military judge failed to ask any of
the three members why they concealed their SARB member-
6 While in Albaaj the case was remanded for a hearing in accord-
ance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411
(1967), Albaaj, 65 M.J. at 168, the post-trial hearing in this case
provides adequate information for us to be certain that the mili-
tary judge abused his discretion in this case.
13
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
ship.7 This is an egregious oversight given the fact that COL
Forsythe indicated that the SARB might have biased his
judgment, and feared that “aggressive” questioning by de-
fense counsel in voir dire would result in his removal. Cf.
McDonough Power Equip., Inc., 464 U.S. at 556 (“The mo-
tives for concealing information may vary, but . . . those rea-
sons that affect a juror’s impartiality can truly be said to af-
fect the fairness of a trial.”). These facts suggest at least the
possibility of intentional concealment, indicating bias. Cf.
Colombo, 869 F.2d at 151 (“[T]he juror’s intentional nondis-
closure . . . . reflected an impermissible partiality on the ju-
ror’s part.”). However, the military judge neglected to ask a
basic question—why the members concealed their SARB
membership—that may have elicited additional evidence of
bias.8
We hold that, taken together, the circumstances sur-
rounding COL Forsythe, COL Ackermann, and LTC Arcari
might have cast “substantial doubt as to [the] legality, fair-
ness, and impartiality” of Appellant’s court-martial, R.C.M.
912(f)(1)(N), and thus “would have provided a valid basis for
a challenge for cause.” Mack, 41 M.J. at 55 (internal quota-
tion marks omitted) (citation omitted). In finding otherwise,
7 Ultimately, the three members were only asked why they
failed to disclose their limited prior knowledge of the case, but not
why they failed to disclose their membership on the SARB.
8 Moreover, we note that “[v]oir dire is a valuable tool . . . .
[for] determining how to exercise peremptory challenges.” United
States v. Jefferson, 44 M.J. 312, 318 (C.A.A.F. 1996) (citation omit-
ted); see also id. (“Adding peremptory challenges was an expan-
sion of the purpose of voir dire from determining impartial jurors
to also assisting counsel in exercising this new right.”). Dishonesty
during voir dire prevents the accused from exercising this im-
portant right. Cf. McCoy v. Goldston, 652 F.2d 654, 658 (6th Cir.
1981) (“[D]eliberate concealment or purposefully incorrect re-
sponses during voir dire suffice to show a prejudicial impairment
of the right to the exercise of peremptory challenges.”); see also
Swain v. Alabama, 380 U.S. 202, 219 (1965) (observing that a per-
emptory challenge is “ ‘one of the most important of the rights se-
cured to the accused’ ” (citation omitted)), overruled on other
grounds by Batson v. Kentucky, 476 U.S. 79 (1986). 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.
14
United States v. Commisso, No. 16-0555/AR
Opinion of the Court
the military judge inappropriately relied on the members’
claimed actual impartiality, focused on the members’ prior
knowledge of the case, ignored salient facts, and misapplied
the law. We therefore hold that the military judge abused
his discretion by not granting Appellant’s motion for a mis-
trial.
III. DECISION
The decision of the United States Army Court of Crimi-
nal Appeals is reversed. The findings and sentence are set
aside, and the record is returned to the Judge Advocate
General of the Army with a rehearing authorized.
15