Three panel members lied. Will CAAF dismiss findings?

On 6 December 2016, the Court of Appeals for the Armed Forces (CAAF) heard oral argument in the Army case United States v. Commisso.  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 negatively.  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.  The CAAF will now review this issue and determine whether the rest of the findings and sentence should be set aside due to the panel member issue.  It is interesting that ACCA held that this was a fair trial because recently ACCA has held that a military judge erred in not recusing himself in a line of cases when he had prior knowledge of the facts (even though the judge clearly did not remember the specifics of the case).  See my prior blog about these decisions with this link .  Even more recently, in this line of cases, ACCA reviewed United States v. Keen.  In that case, the military judge had previously served as the chief of military justice and PFC Keen’s case had been listed on a case tracker that the military judge had viewed in his prior position.  However, the military judge submitted an affidavit to ACCA stating that he did not remember the case at all when he served as the judge.  Regardless, ACCA decided that the military judge erred in not recusing himself from the court-martial.  It is difficult to reconcile the holding in Keen with that in Commisso.  If ACCA found that PFC Keen did not receive a fair trial because the military judge had heard some of the facts previously and did not remember them, then why is it different for the three panel members who had prior knowledge?  It will be interesting to learn how CAAF rules in this case.  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.

William E. Cassara- Military Law Attorney

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