Opinion Analysis: An error “both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system,” in United States v. Riesbeck
CAAF decided the Coast Guard case of United States v. Riesbeck, 77 M.J. 154, No. 17-0208/CG (CAAFlog case page) (link to slip op.), on Tuesday, January 23, 2018. Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” CAAF sets aside the findings and orders the charges dismissed with prejudice.
Judge Ryan writes for a unanimous court.
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.
That panel, however, had remarkable demographics: “the seven-member panel that convicted and sentenced Appellant was composed of five women, four of whom were victim advocates – persons trained to provide support and counseling to victims of rape and sexual assault – and two men.” Slip op. at 1. CAAF granted review of two issues (both specified by the court) regarding that composition:
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
Today’s opinion doesn’t address Issue II because in resolving Issue I the court concludes that:
[T]he error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice.
Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can eradicate the unlawful command influence and ensure the public perception of fairness in the military justice system.
Slip op. at 18 (marks and citations omitted) (paragraphing added).
Riesbeck was tried in 2012. We first discussed his 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 ordered a DuBay (post-trial fact-finding) hearing, heard oral argument (noted here), and issued a new decision (available here) that again affirmed the findings and sentence.
CAAF then granted review a second time (noted here), leading to its decision today. But the court is clearly unhappy to see this case again:
The fact that this case with these facts is returned to us for a second time, rather than attended to at trial, at the DuBay hearing, or by the CGCCA, is a stain on the military justice system. The duty to protect servicemembers against unlawful command influence is not ours alone: “Military judges must continue to fulfill their essential role as the ‘sentinel’ of the military justice system in identifying and addressing instances of unlawful command influence. Moreover, judges on the service Courts of Criminal Appeals must also appropriately address unlawful command influence whenever they encounter it in specific cases.” United States v. Boyce, 76 M.J. 242, 253 n.9 (C.A.A.F. 2017) (citations omitted).
Slip op. at 4 n.6 (emphasis added).
These facts include that at trial the defense challenged the panel composition, asserting “that there was no ‘conceivable, rational or logical reason’ for seven of [original] ten members to be women, five of whom were victim advocates.” Slip op. at 4. But, Judge Ryan explains, “the military judge denied the motion as untimely while blithely asserting the issues could be worked out on appeal rather than actually investigating the allegation.” Slip op. at 4. Then, even “though he had raised the issue at trial, the CGCCA held that Appellant waived his objection to improper member selection and affirmed the findings and sentence.” Slip op. at 4.
That instance of waiver mania precipitated CAAF’s first reversal and the DuBay hearing.
The military judge who conducted the DuBay hearing made extensive findings of fact, and Judge Ryan provides them as an Appendix to the opinion. The findings of fact begin:
It is indisputable that in and around 2012, senior Coast Guard and DoD leadership faced intense external pressure to do more about preventing and responding to sexual assaults.
Slip op. app. at 1. For anyone who was paying attention in 2012, this fact is obvious. The politicization of the military’s response to sexual assault was the #1 Military Justice Story of 2012. But the DuBay judge also made findings about:
a statement on the PACAREA web site attributed to the (then) Area Commander, VADM Zukunft on the topic of sexual assault prevention. The statement was written or approved by him in June 2012 as part of his “Commander’s lntent.” It refers to all personnel under his command as “immediate family” and expresses intolerance of all acts of sexual assault that undermine the “well-being of my family tree.” It implies, to an extent, that a service member accused of sexual assault is automatically expelled from the family.
Slip op. app. at 7. Zunkunft is now a full Admiral and Commandant of the Coast Guard. But back in 2012 he was just the last of four convening authorities involved in the selection of members for this case, ostensibly making him the person with ultimate responsibility for the problematic panel that CAAF finds denied Riesbeck a fair trial. See slip op. at 7. However,
ADM Zukunft’s stipulated testimony revealed that he was not aware of the requirements of Article 25, UCMJ, and believed that member selection was not a best qualified process, but did look for diversity when selecting members.
Slip op. at 7. That’s bad, because military justice is – or at least is supposed to be – one of the primary responsibilities of a commander, and so it’s hard to understand how the Commandant of the Coast Guard can be so wrong about his duty to select members of a court-martial.
Congress established criteria for member selection in Article 25, and Judge Ryan’s opinion explains that these criteria are important because “courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community.” Slip op. at 10 (citation omitted). Accordingly, “in part, it is for this reason that that even reasonable doubt concerning the use of impermissible selection criteria for members cannot be tolerated.” Slip op. at 10 (citations omitted). The Coast Guard CCA, however, “concluded that detailing members based on gender fosters inclusiveness of all segments of the military community and is benign.” Slip op. at 9 (quoting CCA’s second opinion at 14-15) (marks and citations omitted). Whatever inclusiveness means in this context, CAAF rejects it:
the absurdity of the suggestion that the panel composition in this case was an appropriate attempt at “inclusiveness,” or “representativeness” is readily apparent. First, Appellant is neither a woman nor a victim advocate. Rather, he is a male, accused of rape. Second, as a matter of common sense, seventy percent is not statistically or otherwise “representative,” of a population comprising less than twenty percent of the total pool of potential panel members. Third, the findings of the military judge make clear that the severe discrepancy between the percentage of available female panel members and the final makeup of Appellant’s panel was not reflective of a good-faith attempt to either comply with the dictates of Article 25, UCMJ, or create a more representative or an inclusive panel. Rather, it was riddled with intentional efforts to maximize the number of women on the panel because VADM Brown, RADM Colvin, and RADM Ryan thought it was “very important” to have a “large number of women” on the panel in this sexual assault case.
Slip op. at 11-12. Judge also Ryan emphasizes that:
the record in this case is replete with evidence that the inclusion of a high percentage of women was the result of intentional choices by the first three convening authorities, and the apparently untutored acquiescence of the fourth. It is the evidence that an improper selection criterion was actually used that raises the court stacking issue.
Slip op. at 12-13.
Court stacking is prohibited because it “is a form of unlawful command influence, and has the improper motive of seeking to affect the findings or sentence by including or excluding classes of individuals on bases other than those prescribed by statute.” Slip op. at 14-15 (marks and citations omitted). Furthermore, as a form of unlawful influence, “once the issue of improper member selection has been raised . . . the burden shifts to the government to demonstrate beyond a reasonable doubt that improper selection methods were not used, or, that the motive behind the use of the selection criteria was benign.” Slip op. at 15. Here, however:
The salient facts paint a clear picture of court stacking based on gender in an atmosphere of external pressure to achieve specific results in sexual assault cases. Against that backdrop, purposefully selecting a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, smacks of a panel that was “hand-picked” by or for the Government.
Slip op. at 16 (citations omitted).
Yet that’s not the end of Judge Ryan’s opinion for the unanimous court, as she undertakes a prejudice analysis that considers the strength (weakness, actually) of the prosecution’s case against Riesbeck:
The Government’s case was weak, primarily based on the testimony of SN S, the putative victim, who was unable to remember many of the events surrounding the crime due to alcohol use and whose testimony was controverted by other witnesses at trial. The Government’s case was so weak, in fact, that the Article 32 Investigating Officer recommended the dismissal of the Article 120, UCMJ, charges against Appellant.
Slip op. at 17-18. This analysis has echoes of Chief Judge Stucky’s opinion of the court in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), acknowledging a mere “possib[ility] that the members convicted Appellant based solely on the testimony of his accusers. . . ” Guardado, slip op. at 7.
That much supports dismissal. CAAF, however, dismisses with prejudice, meaning that Riesbeck may never be prosecuted by the federal government again, must be reinstated to a full duty status, is entitled to six years of back pay, allowances, and promotions, and will receive the opportunity to continue to serve. If, that is, Riesbeck has any interest in continuing to wear the uniform after such a lengthy and tortured process.
It’s a sharp rap across the knuckles for the convening authority and his staff judge advocate, the trial and DuBay military judges, the Coast Guard CCA, and the Coast Guard Government Appellate Division. And, of course, the taxpayers, who will literally pay the consequences.
• 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
• Oral argument audio.
• CAAF opinion
• Blog post: Opinion analysis