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.

12 Responses to “CGCCA Finds Appellant Waived Challenge to Panel Make-up”

  1. Matt says:

    This case illustrates what has always bothered me about the way we analyze ineffective assistance of counsel claims.  On the one hand, the court says that the defense counsel screwed up by not investigating this issue and addressing it sooner.  The court holds that “the evidence could have been discovered by the exercise of diligence.”  I happen to agree.  It seems to me that a panel this stacked should have raised a dozen warning flags and the issue should have been explored earlier so that a proper objection could have been raised.  However, the court then summarily rejects the IAC claim.  It seems to me that if the defense counsel failed to exercise proper diligence, and such failure resulted in the waiver of an important challenge to the panel composition, that this is the epitome of IAC.  At a minimum, the court should have explored the IAC claim in more depth and explained why there was no prejudice from counsel’s failure to exercise proper diligence.

  2. k fischer says:

    Hmmmmmm…..two sailors drink heavily go back to his room engage in intercourse where she stated she was screaming for help for 15 or 20 minutes, which is contradicted by the direct testimony of a witness who stated he heard nothing, she doesn’t report it for at least six months which was less than a week after he makes her mad by correcting her, and he gets tried for rape where the entire panel is a group of five women all of whom has been trained as a sexual assault advocate, he gets convicted of rape where he has to register as a sex offender for the rest of his life, and they give this man who raped this poor woman for twenty minutes over her pleas and screams for help three months in jail.
     
    Sounds legit……okay, perhaps not.     Sounds to me like the only person who got raped was the accused in the court martial and the subsequent appeal.   I hope the SJA, the TC, and the MJ all felt the need to shower after their “victory.”

  3. Details says:

    k fischer, the story you write leaves out the details of the fifteen minute phone wherein the man apologized to the woman, stating “if I did that, its the worst thing a man can do to a woman.” Within days, he provided investigators with detailed descriptions of their consensual sex.
    If it was consensual, why did he tell the woman he didn’t remember? If it was all fun between two consenting adults, why would he apologize for that “worst thing”?
    There’s more to the story than a bland recitation of facts gleaned in a quick read. Sometime details are important in the law.

  4. DCGoneGalt says:

    Details:  Any more info on that call?  The opinion discusses the scream/wall and denial of funding for the investigation of that issue but has nothing on the call.  Was it a recorded pretext?  Did the accused claim to be blacked out during any of the time?   I have seen folks who will deny anything during a pretext and are lying and seen people who will make statements such as “if I did that” who I believe to be innocent who are trying to just show empathy for someone who is distraught and/or seemingly insane (because their recollection is false and/or the complete opposite of the recipient of the call) on the other end of the line. 
     
    As for the panel stacking . . . if ~ 10% of the CG is female and X% are victim advocates (and you could control for how many victim advocates are female) then the chance of getting a majority female and victim advocate panel is . . .

  5. Zeke says:

    This case is the poster child for why allowing a commander to select the panel who will try the charges he or she refers is obscene.  There are no circumstances where allowing commanders to stack panels serves the interests of justice.  Commander selection of panels, and the lack of unanimity in verdicts, are indefensible and damaging to general respect for the rule of law.  Such a system is not worthy of the men and women it rules.

  6. k fischer says:

    Details, 
     
    You don’t have to tell me details matter.  The story I wrote is taken straight from that facts that are included in the appellate opinion.  But, let me answer your question about why he would act like he did not remember:  She was fugly; the relationship was against policy; he said I don’t remember, then she says well do you remember me screaming, “stop,” so then he is stuck and answers well if I did that then that would the worst thing I could do to a woman.   I would have to read the complete transcripts of the phone call to see whether it was actually him apologizing to her or not.  The quote you used doesn’t sound like an apology to me.  It sounds like a guy trying to move on, but like you said, details matter and I don’t have all of the ones regarding the phone conversation.  
     
    If those are the facts of the actual case, then why didn’t the opinion discuss the pretext phone call?  Seems like your “sometimes details are important in the law” comment should be directed at the CGCCA’s judges who left that pretty pertinent information out in their opinion.
     
    Seems kind of stupid that the CGCCA would affirm, yet only include facts that makes it appear a horrible miscarriage of justice occurred. 

  7. Phil Cave says:

    I read this opinion and comments to say that the government may well have broken the law, but the guy was guilty, so the government gets to break the law until the defense properly calls them on it or there’s doubt as to guilt.  Therefore the government make break the law again, just make sure it’s a guy who is guilty or we can all feel comfortable is guilty.  It doesn’t matter how we get the guilty finding, so long as he’s guilty.  Yeah, yeah, yeah, I’m somewhat familiar with Article 59.
    This seems similar to Lewis Carroll’s Queen, or Robespierre’s argument that Louis Capet, was “dethroned by his crimes . .  [and] cannot therefore be judged, he is already judged,” so quoting the Queen, off with his head – no need for [fair] trial even.
     
    George Orwell wrote a book called 1984, anyone have doubts as to its value as predictive.  Lewis Carroll wrote Alice in Wonderland (or sometimes referred to a Alice Through the Looking Glass.  We are near to Congressional goals folks.  I occasionally have used this phrase, along with some others.
     
     

    It is a bedrock principle of our military justice system that it not only be a fair system of criminal justice, but that it always be perceived as fair.  “[J]ustice must satisfy the appearance of justice.”  Offutt v. United States, 348 U.S. 11, 14 (1954)(Frankfurter, J.).

     
    I’ve used it in challenging the members selection process, along with United States v. Hilow, 32 M.J. 439 (C.M.A. 1991); a case in which the IP was: 
     

    WHETHER THE PANEL DETAILED TO APPELLANT’S COURT-MARTIAL WAS IMPROPERLY SELECTED IN VIOLATION OF UCMJ ARTICLES 16, 25, AND 37 BECAUSE THE NOMINATION PROCESS WAS ORCHESTRATED TO SELECT PERSONNEL WHO WOULD BE IMPERMISSIBLY OR INAPPROPRIATELY SEVERE ON MILITARY JUSTICE MATTERS.

     
    If CAAF takes this case, then it seems to me the right result is a DuBay hearing at least.  Or wait, perhaps the JAG can certify it.

  8. Zachary D Spilman says:

    Phil’s comment brought this to mind:

    Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

    Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J. dissenting).

  9. Charlie Gittins says:

    In US v. Bozecevich, the CG appointed a starting panel that consisted of all officers that he rated and senior enlisted that he senior rated.  The replacements were nearly equally as presumptively biased.  We objected to the composition of the panel as essentially “a CG staff meeting” without the CG, but each of whom knew that the CG had referred the case as a DP case and had been present during SJA discussions of the case at such staff meetings.  We kept objecting.  We went through 65 members to get a panel of 12, and after about thirty members had been excused, we started to get to members who were not senior rated by the CG.  It took three separate challenges of one CSM to remove him from the panel — he acknowledged he read each of the Army Times stories of the case and could bascially recite all of the facts from the Government point of view.  I kept challenging him at every opportunity to challenge replaced members, even though that is not allowed by the challenge rules.  Finally, I think the MJ figured out that if the DP was adjudged, the decision not to excuse him over our repeated, detailed grounds for disqualification, when viewed through the lense of the “liberal grant” for challenges, keeping him would tank the DP.  Fortunately, the CSM was excused, Boz did not have unanimous findings verdict, and the DP was off the table for sentencing.   Stacked panels do happen and DCs need to raise the bullshit flag by objecting when they see it or believe it is happening in their case.

  10. Hmm says:

    Details, I fail to see the relevance of a pretext phone call on the issue of member selection. Are you suggesting that we shouldn’t care whether this panel was stacked simply because there may have been strong evidence in the case? The accused’s statements as you describe them certainly aren’t damning, so either way your point falls flat. Hopefully there’s more details to the member selection issue in that case, because what’s included in the opinion isn’t pretty.

  11. Advocaat says:

    One can reasonably conclude the government stacked this panel to secure a conviction based on the numbers alone (in 2013 the CG had 14.9% female officers and 11.9% female enlisted members; only the Marines had fewer females as a percentage of the force).  Calculating probabilities was never my strong suit but when 70% of the panel selected by the CA is female, aren’t we in the range of the Cubs winning the World Series?  A disproportionate number of senior ranking members is one thing (US v. Bertie), but an astronomically disproportionate number of female members in a 120 case is another.  I’d like to play a poker hand with the CGCCA and show 5 queens for the pot…ridiculous.

  12. Cap'n Crunch says:

    In my view, I think the UCI issue is a good one, even though the CGCCA “summary rejects” it. Allegations of unlawful command influence are reviewed de novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006); United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999); United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). On appeal, the accused bears the initial burden of raising unlawful command influence. Appellant must show: (1) facts, which if true, constitute unlawful command influence; (2) that the proceedings were unfair; and (3) that the unlawful command influence was the cause of the unfairness. United States v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999) (quoting Biagase, 50 M.J. at 143, 150 (C.A.A.F. 1999)). Thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation. United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). The quantum of evidence required to raise unlawful command influence is “some evidence.” Stoneman, 57 M.J. at 41 (quoting Biagase, 50 M.J. at 150) (internal quotation marks omitted).Under United States v. Hamilton, 41 M.J. 32 (CMA 1994), “unlawful command influence at the referral, trial, or review stage is not waived by failure to raise the issue at trial.” Id. at 37.  United States v. Haagenson, 52 M.J. 34 (CAAF 1999) (remanding for Dubay hearing on issue of improper panel selection as UCI). United States v. Upshaw, 49 M.J. 111 (CAAF 1998) (court stacking is a form of UCI, and the court cannot affirm unless it convinced beyond a reasonable doubt that UCI did not occur). See, also, United States v. Hilow, 32 M.J. 439 (CMA 1991) (UCI occurs where court member selection occurs to attempt to achieve a particular result).  CAAF has clearly stated that a convening authority cannot “pack” the panel against an accused by selecting those most likely to punish accused persons severely. United States v. McClain, 22 M.J. 124, 131 (CMA 1986); see United States v. Smith, 27 M.J. 242, 250 (CMA 1988)(convening authority cannot select female members to assure a particular outcome); United States v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970) (convening authority violated the Code by appointing only very senior officers to the court-martial of an E-1); United States v. Hedges, 11 U.S.C.M.A. 642, 643, 29 C.M.R. 458, 459 (1960) (upheld reversal because court-martial had distinct appearance of being “hand-picked” by Government); see also Art. 37, UCMJ, 10 USC § 837 (prohibiting unlawful command influence).  CAAF is “especially concerned to avoid either the appearance or reality of improper selection.” United States v. McClain, 22 M.J. 124, 128-29 (CMA 1986).You don’t think a statistically impossible panel, composed of victim advocates, in a 120 case, raises at least the spectre of improper selection CGCCA?  Really?  Are you joking?  This thing is rotten to the core.  And no, MJ and CGCCA, there was no waiver, because it is a UCI issue, which cannot be waived.There is a strong argument that selection was based on a desire to see a particular result in the case, and not the RCM 502(a)(1) factors, which means there is no waiver under RCM 912(b)(3), which provides: “(3) Waiver. Failure to make a timely motion under this subsection shall waive the improper selection unless it constitutes a violation of … R.C.M. 502(a)(1)…”And the IAC issue is clearly a good one if waiver occurred.  On the UCI, if the detailing and selection of a panel that consists of a extremely unusual number of women, the vast majority of whom are victim advocates, does not at least raise an apparent issue, then I do not know what does.I think you can make a very colorable argument that counsel appropriately raised the issue: “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.”That looks and smells like raising the issue and an objection to me.  There are no magical words, in my view.  And the point of an objection is to put the MJ on notice.  Clearly that did so.Next: “He asserted that the Convening Authority had “not abided by Article 25,” but instead had “decided essentially that the predominate criteria is gender.”  That raises a RCM 502(a)(1) challenge.  Under RCM 912(b)(3), there is no waiver.Good thing I’m not on CAAF.  This would be coming back, with a strongly worded opinion.