U.S. v. Riesbeck, 77 M.J. 154

First Principles: Constitutional Matters: Right to a Jury Trial

1. 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

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges must fulfill their essential role as the sentinel of the military justice system in identifying and addressing instances of unlawful command influence

Military Justice Personnel: Court Members: Generally

1. 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

Military Justice Personnel: Court Members: Eligibility/Selection

1. Article 25(d)(2), UCMJ, states when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experiences, length of service, and judicial temperament; there is nothing in Article 25, UCMJ, that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, criteria) serving on a court-martial
2. where selection of members on an impermissible basis is raised by the evidence, the government needs to present affirmative evidence of benign intent beyond a reasonable doubt; if not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence
3. RCM 912(b)(3) provides an exception to the requirement that a timely motion challenging member selection be made where an objection is based on an allegation that the convening authority selected members for reasons other than those listed in Article 25, UCMJ
4. improper member selection can constitute unlawful command influence, which cannot be waived
5. gender is not an Article 25, UCMJ, member selection factor, and selection on the basis of gender is generally prohibited
6. even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system
7. the member selection in this case was based in no small part on gender, which is error
8. 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
9. in the military justice system, the commanding officer, who refers charges to a court-martial that he or she has convened, selects the members and details them to it
10. a military defendant has a right both to members who are fair and impartial and the appearance of an impartial panel
11. a convening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ; however, this discretion is not unfettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection; neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of constitutional proportion aplenty lurking to upset selections based on gender or race
12. in selecting court members, a convening authority may depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seeking in good faith to make the panel more representative of the accused’s race or gender; Article 25, UCMJ, does not preclude a commander from taking gender into account if he or she was seeking in good faith to assure that the court-martial panel is representative of the military population
13. where the seven-member panel that convicted and sentenced appellant for rape was composed of five women, four of whom were victim advocates, that is, persons trained to provide support and counseling to victims of rape and sexual assault, any suggestion that the selections were made to promote inclusiveness, ensure a representative panel, or for an otherwise benign purpose was specious; first, appellant was neither a woman nor a victim advocate, but rather was a male, accused of rape; second, as a matter of common sense, a panel composed of seventy percent woman was not statistically or otherwise representative, of a female population comprising less than twenty percent of the total pool of potential panel members; and third, the findings of the military judge made 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, but rather was riddled with intentional efforts to maximize the number of women on the panel because the commanding officers thought, either consciously or unconsciously, that it was very important to have a large number of women on the panel in this sexual assault case; given that the government presented no evidence of benign intent, it appears that those involved in the selection process believed court stacking based on gender would influence the result of appellant’s court-martial; appellant raised the issue of improper member selection on the basis of gender, and the government failed to prove at all, let alone beyond a reasonable doubt, that the improper member selection process was not motivated by gender-based court stacking; additionally, the government has not met its burden of showing beyond a reasonable doubt that appellant received a fair trial from an impartial panel, free from the effects of unlawful command influence
14. bare statistical evidence showing over selection of a particular group, without other supporting facts, is generally not sufficient to raise the issue of court stacking
15. the actual ignorance of the convening authority does not insulate him or her from the errors or misconduct of his or her subordinates; where, in this case, the first three convening authorities intentionally and improperly selected a high percentage of women to the court-martial panel, the apparent ignorance of the final convening authority of the number of women present on the panel did not purge the error from the panel selection process, particularly where he was neither aware that the recommendations given to him were not based on Article 25, UCMJ, nor independently cognizant of what Article 25, UCMJ, required
16. a selection process geared to ensure a large number of women were placed on the panel in this case does not fall into the limited representativeness exception to Article 25, UCMJ, constitutes improper member selection, and is error
17. while the government is absolutely prohibited from assigning members to, or excluding members from, a court-martial panel in order to achieve a particular result as to findings or sentence (court stacking), not all improper member selection constitutes court stacking
18. even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system; where improper selection criteria have been used to select members for a court-martial panel, such doubt must be resolved in favor of the accused
19. court stacking 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
20. once an 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
21. the government can rebut a claim of court stacking by showing administrative error, or by showing that, in fact, the convening authority included or excluded a certain group from panel membership in an attempt to comply with Article 25, UCMJ
22. the absence of direct evidence in the form of testimony of malintent and impure motive with regard to member selection does not mean that there is no evidence that the convening authorities or their subordinates were motivated by the intent to achieve a particular result as to findings or sentence; rather, as in other instances of asserted unlawful command influence, where the government fails to meet its burden to rebut the allegation of improper member selection, as a matter of law, appellant has established unlawful command influence
23. although there is nothing wrong with placing either women or victim advocates on panels deciding cases involving sexual assault, when the majority of panel members in a sexual assault case are both, it gives the panel the distinct appearance of being hand-picked by and for the government
24. against the backdrop of an atmosphere of external pressure to achieve specific results in sexual assault cases, a convening authority who purposefully selects 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, gives the appearance of hand-picking a panel for the government; the specter is raised that the person tasked with choosing appellant’s court-martial panel hoped to select members predisposed to understand the testimony
25. in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt
26. in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused

Military Justice Personnel: Convening Authority: Generally

1. Article 25(d)(2), UCMJ, states when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experiences, length of service, and judicial temperament; there is nothing in Article 25, UCMJ, that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, criteria) serving on a court-martial
2. in the military justice system, the commanding officer, who refers charges to a court-martial that he or she has convened, selects the members and details them to it
3. a convening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ; however, this discretion is not unfettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection; neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of constitutional proportion aplenty lurking to upset selections based on gender or race
4. in selecting court members, a convening authority may depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seeking in good faith to make the panel more representative of the accused’s race or gender; Article 25, UCMJ, does not preclude a commander from taking gender into account if he or she was seeking in good faith to assure that the court-martial panel is representative of the military population
5. the actual ignorance of the convening authority does not insulate him or her from the errors or misconduct of his or her subordinates; where, in this case, the first three convening authorities intentionally and improperly selected a high percentage of women to the court-martial panel, the apparent ignorance of the final convening authority of the number of women present on the panel did not purge the error from the panel selection process, particularly where he was neither aware that the recommendations given to him were not based on Article 25, UCMJ, nor independently cognizant of what Article 25, UCMJ, required
6. against the backdrop of an atmosphere of external pressure to achieve specific results in sexual assault cases, a convening authority who purposefully selects 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, gives the appearance of hand-picking a panel for the government; the specter is raised that the person tasked with choosing appellant’s court-martial panel hoped to select members predisposed to understand the testimony

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Selection of members

1. Article 25(d)(2), UCMJ, states when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experiences, length of service, and judicial temperament; there is nothing in Article 25, UCMJ, that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, criteria) serving on a court-martial
2. where selection of members on an impermissible basis is raised by the evidence, the government needs to present affirmative evidence of benign intent beyond a reasonable doubt; if not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence
3. gender is not an Article 25, UCMJ, member selection factor, and selection on the basis of gender is generally prohibited
4. even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system
5. the member selection in this case was based in no small part on gender, which is error
6. 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
7. a military defendant has a right both to members who are fair and impartial and the appearance of an impartial panel
8. a convening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ; however, this discretion is not unfettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection; neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of constitutional proportion aplenty lurking to upset selections based on gender or race
9. in selecting court members, a convening authority may depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seeking in good faith to make the panel more representative of the accused’s race or gender; Article 25, UCMJ, does not preclude a commander from taking gender into account if he or she was seeking in good faith to assure that the court-martial panel is representative of the military population
10. bare statistical evidence showing over selection of a particular group, without other supporting facts, is generally not sufficient to raise the issue of court stacking
11. a selection process geared to ensure a large number of women were placed on the panel in this case does not fall into the limited representativeness exception to Article 25, UCMJ, constitutes improper member selection, and is error
12. while the government is absolutely prohibited from assigning members to, or excluding members from, a court-martial panel in order to achieve a particular result as to findings or sentence (court stacking), not all improper member selection constitutes court stacking
13. even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system; where improper selection criteria have been used to select members for a court-martial panel, such doubt must be resolved in favor of the accused
14. court stacking 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
15. once an 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
16. the government can rebut a claim of court stacking by showing administrative error, or by showing that, in fact, the convening authority included or excluded a certain group from panel membership in an attempt to comply with Article 25, UCMJ
17. the absence of direct evidence in the form of testimony of malintent and impure motive with regard to member selection does not mean that there is no evidence that the convening authorities or their subordinates were motivated by the intent to achieve a particular result as to findings or sentence; rather, as in other instances of asserted unlawful command influence, where the government fails to meet its burden to rebut the allegation of improper member selection, as a matter of law, appellant has established unlawful command influence
18. although there is nothing wrong with placing either women or victim advocates on panels deciding cases involving sexual assault, when the majority of panel members in a sexual assault case are both, it gives the panel the distinct appearance of being hand-picked by and for the government
19. against the backdrop of an atmosphere of external pressure to achieve specific results in sexual assault cases, a convening authority who purposefully selects 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, gives the appearance of hand-picking a panel for the government; the specter is raised that the person tasked with choosing appellant’s court-martial panel hoped to select members predisposed to understand the testimony

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Selection of court members

1. in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt
2. in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. judges on the service courts of criminal appeals must appropriately address unlawful command influence whenever they encounter it in specific cases

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. it is incumbent upon the CAAF to scrutinize carefully any deviations from the protections designed to provide an accused servicemember with a properly constituted panel

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt
2. in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused

Trial Stages: Appeals: Remedies › Generally

1. due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, Article 37, UCMJ, the failures of the military judge, the DuBay military judge, and the CCA, 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 of the charges 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews the selection of court-martial members for error de novo
2. an appellate court applies a case-specific analysis when deciding issues of improper member selection
3. in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt
4. in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused

Trial Stages: Appeals: Waiver

1. improper member selection can constitute unlawful command influence, which cannot be waived
2. in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt

Miscellaneous Matters: Command Influence: Members

1. where selection of members on an impermissible basis is raised by the evidence, the government needs to present affirmative evidence of benign intent beyond a reasonable doubt; if not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence
2. improper member selection can constitute unlawful command influence, which cannot be waived
3. where the seven-member panel that convicted and sentenced appellant for rape was composed of five women, four of whom were victim advocates, that is, persons trained to provide support and counseling to victims of rape and sexual assault, any suggestion that the selections were made to promote inclusiveness, ensure a representative panel, or for an otherwise benign purpose was specious; first, appellant was neither a woman nor a victim advocate, but rather was a male, accused of rape; second, as a matter of common sense, a panel composed of seventy percent woman was not statistically or otherwise representative, of a female population comprising less than twenty percent of the total pool of potential panel members; and third, the findings of the military judge made 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, but rather was riddled with intentional efforts to maximize the number of women on the panel because the commanding officers thought, either consciously or unconsciously, that it was very important to have a large number of women on the panel in this sexual assault case; given that the government presented no evidence of benign intent, it appears that those involved in the selection process believed court stacking based on gender would influence the result of appellant’s court-martial; appellant raised the issue of improper member selection on the basis of gender, and the government failed to prove at all, let alone beyond a reasonable doubt, that the improper member selection process was not motivated by gender-based court stacking; additionally, the government has not met its burden of showing beyond a reasonable doubt that appellant received a fair trial from an impartial panel, free from the effects of unlawful command influence
4. court stacking 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
5. the absence of direct evidence in the form of testimony of malintent and impure motive with regard to member selection does not mean that there is no evidence that the convening authorities or their subordinates were motivated by the intent to achieve a particular result as to findings or sentence; rather, as in other instances of asserted unlawful command influence, where the government fails to meet its burden to rebut the allegation of improper member selection, as a matter of law, appellant has established unlawful command influence
6. in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt
7. unlawful command influence is the mortal enemy of military justice
8. where manipulation of the court member selection process is fostered or perpetuated by military authorities through ignorance or deceit, it substantially undermines the public’s confidence in the integrity of the court-martial proceedings
9. in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused
10. in this case, the government failed to show that it has met the burden to show, beyond a reasonable doubt, that appellant received a fair trial from an impartial panel; the very panel that tried, convicted, and sentenced appellant was the same panel hand-picked by those charged with selecting appellant’s court-martial panel; the government’s case was weak, primarily based on the testimony of 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; in fact, the government’s case was so weak that the Article 32 investigating officer recommended the dismissal of the Article 120, UCMJ, charges against appellant; in addition, the military judge failed to conduct even a rudimentary investigation into appellant’s claims of improper member selection, completely abdicating his responsibility to cleanse appellant’s court-martial of the unlawful command influence; and the CCA, rather than correct the obvious error, did not embrace its proper and frankly necessary role in the context of member selection and unlawful command influence, but rather rationalized the error away as a benign effort to seek inclusiveness; the 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