Case Information
*1 This opinion is subject to revision before publication U NITED S TATES C OURT OF A PPEALS FOR THE A RMED F ORCES _______________ 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.
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,
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- bers, because three panel members failed to dis- close that they had prior knowledge of the case.
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.
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.
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. 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 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-
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; (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,
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.
Ellis
,
“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
,
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
,
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
,
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
,
We recognize that not every contretemps during voir dire
rises to the level of a constitutionally unfair trial,
see Smith
,
Nevertheless, the law is well settled that failure 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. 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
,
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. 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.
,
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
,
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
,
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
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
,
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.
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-
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
,
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
,
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.
Notes
[1] Appellant raised the issue of the impartiality of the panel members, but the Court of Criminal Appeals declined to address it.
[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
,
[3] COL Forsythe’s comments about wanting to “punch the guy” were not specifically about Appellant’s case.
[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
,
[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.
[6]
While in
Albaaj
the case was remanded for a hearing in accord-
ance with
United States v. DuBay
,
[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
,