In its recent opinion United States v. Riesbeck, No. 1374 (CGCCA 5 Aug 2014), the CGCCA finds that an appellant waived a challenge to a “stacked” panel for his general court-martial. The appellant was charged with and convicted of, among other things, a specification of rape in violation of Article 120, UCMJ. The charges stemmed from an incident in September 2010 that occurred during a port call in Puerto Vallarta, Mexico.
On appeal, the appellant raises several issues including the composition of his court-martial panel. The final panel chosen by the convening authority consisted of seven women and three men, which was actually an increase in women from the six women and four men that had been on a previous version of the convening order. Of these, five individuals had served as or were currently serving as victim advocates, and two others had assisted women who had complained of sexual assault. Two of these individuals, who were trained as victim advocates or had assisted a female sexual assault complainant, were successfully challenged for cause and eventually excused. However, the appellant’s final panel that was seated included five women who had served or were serving as victim advocates or had assisted a woman who had complained of sexual assault.
At the outset, I think most people would say that there seems to be something at least a little improbable about this panel. After group and individual voir dire, and as a preface to his challenges, the appellant’s civilian defense counsel noted the above-mentioned statistics and stated:
So whether this leads to anything, I do not know. It’s unusual. And to the extent that appellate counsel wishes to gather further evidence and perhaps requesting a new trial, somewhat late – I do not know – but I just want to note that for the record.
Slip op. at 5-6. However, the defense counsel did not ask to stay the proceedings or directly object there on the record, but proceeded with his challenges. The challenges were made in a separate session of court after voir dire was completed. This becomes relevant later. Following the session of court for the challenges, there was a recess, followed by another session of court for preliminary instructions. The court then recessed for the evening. The next morning the following transpired:
…defense counsel placed on the record what he called newly discovered evidence, the materials that had been provided to the Convening Authority pertaining to amendment of the Convening Order to add enlisted members, including rosters of potential members, both officer and enlisted. (R. June 13 at 6; Appellate Ex. XXXVI.) He asserted that the Convening Authority had “not abided by Article 25,” but instead had “decided essentially that the predominate criteria is gender.” (R. June 13 at 6-7.) He sought to call witnesses to inquire as to why there were so many women on the panel, and in anticipation of the evidence to be developed thereby, he moved to strike all the female panel members. (R. June 13 at 7.) He acknowledged that the day before he had stated that he did not have a problem with the panel, but he had reconsidered that position. (R. June 13 at 8.)
Slip op. at 6.
The trial judge denied the appellant’s motion as untimely, citing R.C.M. 912(b)(1) which states in relevant part:
Before the examination of members under subsection (d) of this rule begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly.
In the trial judge’s analysis, the defense counsel should have moved to stay the proceedings at the session of court where the challenges were made. Since he did not, he waived the issue. The trial judge as well as the CGCCA were unpersuaded that the potential member rosters were newly discovered evidence, which would have allowed him to bring the challenge. In the CGCCA’s estimation:
Although these rosters provided the facts about relative numbers of men and women in the pools of potential members, the defense had already noted that the numbers most likely did not reflect the proportions of men and women in the pools (“unusual”); the evidence could have been discovered sooner by the exercise of diligence.
Slip op. at 7. Additionally, the CGCCA found that the defense counsel “noting for the record” the unusual make-up of the panel, could not be construed as him moving to stay the proceedings or any way reserving the issue. The CGCCA also summarily rejects, with no analysis, the appellant’s claim that if his defense counsel failed to timely object to the panel this constituted ineffective assistance of counsel.
This case seems like a rather harsh and mechanical application of 912(b)(1) and 912(b)(3). This is particularly true where 912(b)(3) provides that the issue is not waived where there is a violation of RCM 502(a)(1). There is arguably a case that the defense could have made, and likely wanted to make, that the convening authority intentionally selected members who would be sympathetic or deferential to a victim and to the government’s case rather than based on the factors in RCM 502(a)(1). It’s impossible to know though without further evidence being developed at the trial level. Additionally, it’s potentially relevant, although the court doesn’t really address it, that based on the description of the facts in the case jeopardy had likely attached before the defense counsel actually objected. It will be interesting to see whether CAAF takes up the waiver issue here.
There is also an important lesson here for defense counsel, which is that “noting for the record” is not the same as objecting. When something seems fishy object and try to figure out what to do to preserve the issue. Here it involved moving for a stay of proceedings. If the trial judge denies your objection or requested course of action now you have at least preserved the issue. All “noting for the record” does, when you should be objecting, is draw everyone’s attention to the fact that you should have objected.