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