United States v. Commisso, 2017 CAAF LEXIS 635

Appellant (Sfc. Commisso) was convicted at a general court-martial of multiple sexual-assault–related offenses; sentence approved and affirmed in part by the Army CCA.
After trial defense learned three of the ten panel members (COL Forsythe, COL Ackermann, LTC Arcari) regularly attended Sexual Assault Review Board (SARB) meetings where Appellant’s case was discussed from the alleged victim’s perspective.
During voir dire those three members answered negatively to material questions about prior knowledge of the case, exposure to facts, involvement in sexual-assault response groups, and SARB participation; defense therefore did not challenge them for cause or use peremptories.
Post-trial one member reported concerns that SARB briefing slides might prejudice members and acknowledged recognizing Appellant’s case; the military judge held an Article 39(a) hearing but denied a motion for a mistrial.
The CAAF held the military judge abused his discretion by (1) focusing on members’ subjective intent rather than objective candor, (2) failing to consider implied-bias and cumulative-effect arguments, and (3) not adequately investigating why members concealed SARB membership; the findings and sentence were set aside and a rehearing authorized.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of post-trial mistrial was abuse of discretion given members’ nondisclosures on voir dire	Defense: Three members failed to disclose material SARB involvement and exposure to the victim’s unchallenged narrative; honest answers would have provided a valid basis for challenges for cause and undermined public confidence	Government: Members testified they were impartial; military judge found no actual bias and treated nondisclosures as not demonstrating dishonesty or prejudice	The court reversed: military judge abused discretion by misapplying law (focusing on subjective intent), failing to consider implied bias/cumulative effect, and not adequately investigating nondisclosures; rehearing ordered

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (voir dire requires truthful answers; concealment can justify overturning verdict)
United States v. Mack, 41 M.J. 51 (if honest answers would have provided valid basis for challenge for cause, failure can require new trial)
United States v. Albaaj, 65 M.J. 167 (member duty of candor on voir dire; objective correctness of answers is the test)
United States v. Wiesen, 56 M.J. 172 (constitutional/regulatory right to an impartial panel)
Smith v. Phillips, 455 U.S. 209 (due process requires impartial trier; not every juror issue mandates a new trial but fairness is essential)