CAAF will hear oral argument in the Coast Guard case of United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page), on Wednesday, October 25, 2017, after the argument in Bailey. CAAF specified two issues involving the members of the court-martial:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

We first discussed this case here, reviewing the Coast Guard CCA’s 2014 decision that found the issue of improper panel selection waived by the failure to make a timely objection. CAAF summarily reversed and remanded for further review (noted here). The CCA then heard oral argument (noted here) and issued a new decision (available here) affirming the findings and sentence.

The court-martial panel was initially composed of ten members, seven of whom were women. This was a disproportionate percentage of women considering the composition of the command. Of those initial ten members, voir dire revealed that five had served as sexual assault victim advocates and two more had training or experience assisting victims of sexual assault. The defense challenged three members; the military judge granted two of those challenges, and the defense used its peremptory challenge on the third (the prosecution made no challenges). Seven members remained after challenges. Five of them were women, all of whom had victim advocate experience.

These facts indicate a problem with the second issue specified by CAAF. R.C.M. 912(f)(4) states that “when a challenge for cause has been denied the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review.” The challenged member referenced in Issue II was excused by use of a peremptory challenge.

This rule was promulgated in 2005, before Riesbeck’s case was tried. Under the prior rule any error in the denial of a challenge could be preserved despite use of a peremptory challenge, but the 2005 change specifically eliminated that possibility. See United States v. Harman, 66 M.J. 710, 719 n.2 (A. Ct. Crim. App. 2008) (discussing change). Unfortunately, none of the briefs – nor the CCA’s opinions – address this. Rather, Riesbeck’s brief concludes:

Conclusion

The defense challenge against LCDR KO should have been granted. As one of five victim advocates and a crime victim herself, her presence on the panel would have created an appearance of unfairness. Further, denial of the challenge forced the defense to use its preemptory challenge unnecessarily.

App. Br. at 29. Because this member was excused peremptorily, R.C.M. 912(f)(4) bars further consideration of the challenge.

But the sheer number of victim advocates on the panel, and how they got there, are issues for CAAF’s consideration.

Members must be personally selected by the convening authority, but a convening authority may rely on subordinates to nominate members for selection. In Riesbeck’s case the convening authority was the Commander, Coast Guard Area Pacific, a vice admiral (O-9). The convening authority’s deputy and chief of staff were rear admirals (O-8), and the staff judge advocate was a captain (O-6). The members were selected through a series of convening order modifications transmitted by written memoranda (identified in the briefs as digests), some of which were acted upon by the deputy and chief of staff. Ultimately, however, the convening authority himself signed the final convening order after receiving advice from the staff judge advocate. That advice, however, may not have fully disclosed the prior actions of the deputy and chief of staff.

Riesbeck’s brief asserts that this lack of disclosure is fatal to the selection process:

The convening authority cannot rely on his subordinate’s recommendation if he does not know who made the recommendation. . . .

[T]his was ADM Zukunft’s [the convening authority] first selection of members as Commander, PACAREA. There is no evidence that he “relied” on his subordinates. There is no evidence that ADM Zukunft even read the digests addressed to him. . . . In fact, these digest request that the Convening Authority select a box to either “Concur” or “Non-Concur” with the excusals and member substitutions associated with the draft order attached. These boxes are left blank.

App. Br. at 20.

The Government Division’s brief doesn’t directly address this argument. Rather, it asserts that the convening authority’s “personal review of the proposed list as reflected on draft orders, and eventual signature of those orders is sufficient to demonstrate unfettered decision-making, despite the involvement of subordinates in compiling the list.” Gov’t Div. Br. at 11. It also argues:

The [staff judge advocate’s] written advice specifies it is a “recommendation,” refers to members under consideration as “candidates,” and recommends that certain candidates be “releas[ed] from consideration.” J.A. at 518. The written advice also invites ADM Zukunft to ask questions, choose whether to concur or non-concur, and direct different documentation be prepared if he rejected the recommendations. Id. ADM Zukunft also had recent experience convening courts-martial at the time he selected members for appellant’s court martial. J.A. at 524. His previous experience, along with the SJA’s advice, demonstrate that he made an unfettered choice to detail members when he signed the convening order amendments, even though the list of members was proposed by his subordinates. J.A. at 517, 519.

Gov’t Div. Br. at 12. The question for CAAF, it seems, is whether this is enough.

For the second issue, Riesbeck’s brief sets up what might be a matter of first impression. The brief emphasizes “the large number of victim advocates” on the panel, App. Br. 26, and it argues:

Even though all of these victim advocates may have genuinely believed they could be impartial, an outside observer would question the fairness of a panel composed of a majority of members who have received training to work with sexual crime victims deciding a sexual assault case. This is implied bias.

App. Br. at 27. The Government Division’s response rejects this contention:

It was also not error for the Military Judge to refuse to consider a request to remove a member solely to change the panel composition as an implied bias challenge, because the implied bias tests concerns the particular member who is being challenged, not panel composition as a whole.

Gov’t Div. Br. at 19 (emphasis added).

Riesbeck’s brief finds unfairness in the large number of victim advocates on the panel based on the assertion that training as a victim advocate makes it harder for a person to critically examine an accusation of sexual assault and resolve any reasonable doubt in favor of the accused. App. Br. at 26-27. This is a superficially-appealing proposition, but seems to be more opinion than fact. Moreover, the ability of a member to follow the military judge’s instructions and hold the prosecution to its burden of proving the elements beyond any reasonable doubt is a classic issue for voir dire. Here there was voir dire, after which the defense challenged only three members (all of whom were excused).

An accused is entitled to both a fair panel and the appearance of a fair panel. United States v. Ward, 74 M.J. 225, 228 (C.A.A.F. 2015) (CAAFlog case page). The big question for CAAF in this case seems to be whether it need only look at each member individually or whether it must consider the apparent fairness of the panel as a whole. Put differently, even if each individual member is fair can a panel as a whole nevertheless be unfair? If so, then the presence of so many victim advocates might warrant reversal.

Case Links:
CGCCA opinion
Blog post: CGCCA Finds Appellant Waived Challenge to Panel Make-up 
Blog post: CAAF reverses
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard Appellate Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

9 Responses to “Argument Preview: Is a fair panel more than the sum of its parts, in United States v. Riesbeck, No. 17-0208/CG”

  1. Former DC says:

    Zack:
    Great analysis. Two questions:
    1. On the RCM issue, I don’t think the rule is quite the categorical bar you think it is. Now, you have read the briefs and I haven’t, but the obvious way around the rule is to make this a Constitutional issue. That avoids the rule. As an example, let’s say the rule says you waive a Batson (race based) challenge by use of the peremptory. I doubt it would fly. Maybe the same route can be used here?
    2. For the panel issue, this seems to be a classic case of a situation where a disinterested observer would reasonably question the fairness of the process. Suppose for a moment this was a panel composed of a majority of military police. All promise to be fair, but I doubt an outside observer would buy. Appellate courts famously point out that their rule must cover the waterfront of cases, not just this one. That hypothetical seems to show what CAAF would be signing up for if they approve this panel. 

  2. White Female Disinterested Observer says:

    I agree with Former DC on both points and I was thinking of race before I got to the end of your analysis.  I’ve never had any legal training and I’m here to tell you – that panel doesn’t pass the sniff test.  Not from my outside observer viewpoint.  And, not just because of the victim advocate thingy.  Five women?  When that doesn’t even come close to being representative of the unit/command/etc.?  I can’t imagine that proportion of females getting recommended for innocent reasons.  I’m not saying who or why, because I have no idea, but basic probability argues against that coninkydink.

  3. Zachary D Spilman says:

    The thing is, Former DC and Disinterested Observer, that bias (actual and implied) applies to individuals

    “Actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (citing United States v. Reynolds, 23 M.J. 292, 294 (C.M.A.1987)) (emphasis added).

    “Implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced. The test for determining an R.C.M. 912(f)(1)(N) challenge for implied bias is objective, viewed through the eyes of the public, focusing on the appearance of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citations and marks omitted) (emphasis added).

    It’s also worth mentioning that “Actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge.’” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). The ground for the challenge is R.C.M. 912(f), which begins: “A member shall be excused for cause whenever it appears that the member. . .” (emphases added). 

    Now in this case – best I can tell from the briefs – the defense was satisfied that all of the members who actually heard the case were not biased (because all of the members the defense actually challenged were excused). So I expect CAAF will wonder what it is about that panel that is unfair. Put differently, if each individual member who actually heard the case was not biased, and the panel is the sum of those individual parts, then how can the panel be biased?

    Now I recognize – rhetorically – that a group can be more than the sum of its individuals. That’s why I gave this preview the title it has. “A person is smart; people are dumb, panicky, dangerous animals and you know it.” But I’m not aware of any precedent that says that. 

    As for the rule, Former DC, I don’t see anything wrong with it and I fully expect CAAF will find that the excused member isn’t an issue on appeal. Excused members don’t prejudice a case, and the ability to excuse an unbiased member (with a peremptory challenge) is wholly different from the right to unbiased members.

  4. Former DC says:

    Zack:
    On the challenge: Didn’t SCOTUS say different in the Batson line of cases? That the use of a peremptory – by either side – doesn’t cure a violation?
    As for the panel: Sure, the DC missed the boat, and that’s a problem, so this case is maybe a bad vehicle. But there are lots of cases, civilian ones with juries, not members, that say that the overall makeup of a jury is significant. Again, race is the leader, but not the only situation. I really think your reading would potentially make Batson a dead letter in courts-martial. 
    To me, that’s what this case comes down to. I can’t see CAAF missing the obvious race implications and creating precedent that would open that door. 

  5. Zachary D Spilman says:

    Batson was about the improper use of a peremptory challenge.

    “Neither the prosecutor nor the defense may engage in purposeful discrimination on the basis of race or gender in the exercise of a peremptory challenge.” United States v. Chaney, 53 M.J. 383, 384 (C.A.A.F. 2000) (citing Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994); United States v. Moore, 28 M.J. 366 (C.M.A. 1989); Witham, 47 M.J. 297).\

    This case has nothing to do with the improper use of a peremptory challenge. 

  6. Former DC says:

    I know that. But memory suggests a case in that line says that a Batson violation is not cured, as a Constitutional matter, by use of the peremptory to restore balance. As I said, that’s relying on memory.
    Again, this case may be a bad vehicle, but I bet there are questions about what happens if the panel was stacked with all of one race, or something similar. 

  7. Angie Ostrowiski says:

    It appears that none of you defense hacks understand that a victim has the right to a jury of her peers.  Look it up.  It’s in the thing.

  8. TC says:

    Former DC,
    By the nature of a Batson violation, it could never be cured by use of a peremptory.  A Batson violation can only occur with a peremptory challenge.  It inherently does not involve a challenge for cause.

  9. Anon says:

    By victim, you mean complaining witness…who’s entitled to the same “rights” as every other witness?  Sure.