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Three panel members lied. CAAF overturns conviction saying that mistrial should have been granted.

In June 2017, the Court of Appeals for the Armed Forces (CAAF) overturned a conviction for several alleged offenses in the Army case United States v. Commisso because three panel members lied when they stated that they had no prior knowledge of the case. Sergeant First Class (SFC) Commisso was convicted 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. The members acquitted SFC Commisso of three specifications of rape. SFC Commisso was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. During voir dire, the panel members were asked several questions. One set of those questions focused on whether the members had any prior knowledge of the facts in SFC Commisso’s case. All of the panel members answered that they had no prior knowledge. However, part of the way through the court-martial, three of the panel members realized that they had heard some of the facts of the case when they attended a Sexual Assault Review Board (SARB) meeting prior to the trial. The three panel members did not inform the judge or the counsel of their prior knowledge. After the court-martial was over, the SFC Commisso’s defense counsel discovered that the three panel members had prior knowledge of the case and moved for a mistrial. The military judge denied the motion stating that the three panel members informed him that they did not remember any of the specifics in SFC Commisso’s case. SFC Commisso appealed to the Army Court of Criminal Appeals (ACCA). The ACCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence without any discussion of the issue regarding the three panel members. Then CAAF reviewed this decision and overturned ACCA. The CAAF stated that the military judge erred in not granting the defense’s motion for mistrial. As the facts came out during the motion, the three panel members remembered serving on the SARB and even talked about it with each other during breaks from deliberations.  However, CAAF was shocked to find that no one asked them why they did not reveal this issue to the judge.  Among other things, the purpose of the SARB is for experts and commanders to discuss what victim protections might need to be put in place when a sexual assault allegation has come up. Therefore, an individual who sits on the SARB and then later sits on the court-martial panel undoubtedly has prior knowledge of the case. This could happen quite a bit, so a defense counsel must have the experience to know what questions to ask during voir dire. If you or a loved one is facing a court-martial or wants to appeal one, you need someone who is apprised of the latest case law. I am apprised of the latest and I have a great deal of experience in trying court-martials and appealing them to both the service appellate courts and to CAAF. Call today and we will talk through your case. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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