In the midst of the military’s war on sexual assault, military commanders succumbed to political pressures on a daily basis, often sending good servicemembers to court-martial for sexual assault based on bare accusations. As one of the Navy’s Special Victims Prosecutors, I often fought a war behind closed doors with staff judge advocates and commanders, stressing that we shouldn’t put Sailors and Marines’ lives in jeopardy, that we shouldn’t place them under severe psychological and physical stress associated with being put on trial for an offense that could land you decades in the brig, without a case that we felt we could prove beyond a reasonable doubt at trial. I won that battle sometimes, but lost more than I won and suffered the professional embarrassment at times representing the United States in a trial that I didn’t feel the evidence proved guilt beyond a reasonable doubt. The commanders were fine with acquittals because they could defend themselves by pointing to the court-martial panel or military judge as the decision-maker.
What is unique about the Coast Guard case United States v. Riesbeck is that the Coast Guard commanders and lawyers made it publicly known that they wanted a conviction and disregarded the rule of law. The flag officers (yes plural) and senior judge advocates involved in selecting the panel (jury) members made it clear that they wanted females on the jury in this young enlisted man’s sexual assault trial. Even more egregious, they picked mostly females who had received specialized training as sexual assault victim advocates or program coordinators! These people are trained to always believe the victim of sexual assault, and the military judge let them stay on the panel.
Here is how the Court of Appeals for the Armed Forces (CAAF) summarized the panel composition:
Appellant chose to be tried by a panel including enlisted members. Ten members were ultimately detailed to sit as Appellant’s court-martial panel. Seven of these members were women. Thus, although the court-martial panel for this case was selected from a roster of officers that was only twenty percent female and a pool of enlisted personnel that was only thirteen percent female, the panel selected for Appellant’s court-martial was seventy percent female. Five of the women were victim advocates. Following voir dire and Appellant’s challenges, the panel consisted of seven members,
five of whom were women. Four of those women were victim advocates.
The Accused challenged the panel post-trial, and the military judge, demonstrating his lack of understanding of the law or indifference to evidence that an accused’s rights have been trampled, stated that the issue would be resolved on appeal. The Coast Guard appellate court initially said the issue of panel composition was waived, but was reversed by the CAAF! And during a subsequent Dubay hearing, a different Coast Guard military judge ratified the selection method for the panel, concluding:
Based on the foregoing information, the DuBay military judge concluded that “[g]iven the intense external pressures, and lack of any other explanation, the most likely reason for the selections made by [VADM Brown, RADM Colvin, and RADM Ryan] were conscious or unconscious decisions . . . that it was very important to have a large number of women on the court.” At each phase of member selection, the parties could not identify any other subgroup that was over represented to the extent of women. The military judge also found at each step that no selection criteria had been identified which could explain the selection of so many women, or “distinguish” the members selected on any basis other than gender. The DuBay military judge’s ultimate conclusion was that ADM Zukunft himself did not make any gender-based decisions, but rather implemented previous decisions by others: “Absent personal knowledge of the listed members, which he does not appear to have, [he] could not have ‘packed’ the
court with women even if he desired to do so.”
The Coast Guard appellate court (CGCCA) then reviewed the Dubay findings and upheld the conviction. As relevant to the granted issue, the CGCCA concluded that there was no evidence that the convening authorities or their subordinates were “motivated by the intent to achieve a particular result as to findings or sentence.” The CGCCA also noted that having women on the panel fostered inclusiveness.
So, at this point, the case is back to the CAAF. So far 2 military judges have looked at the case and the CGCCA has looked at the case twice and found no issues. The CAAF was loaded for bear, held that the stacking of the panel was clear unlawful command influence and violated an accused’s rights to a fair and impartial panel. The CAAF found the Coast Guard’s conduct so egregious that it dismissed the charges against the Accused with prejudice – meaning he can never be tried for the offenses ever again. The CAAF also made clear its dissatisfaction with the Coast Guard’s execution of its military justice responsibilities in a footnote:
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 Appeal 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).
Was there enough evidence to convict this servicemember of sexual assault? I don’t know and the court opinions don’t really talk too much about the evidence because the Coast Guard manipulated the process so it was not fair to the accused. The Coast Guard commanders attempted to unlawfully influence the outcome a sexual assault trial. The CAAF did the right thing, and to the extent that any of these Coast Guard commanders or lawyers are still on active duty, they should be investigated and disciplined for their role in manipulating the military justice system.
Attorney Patrick Korody represents military members worldwide in courts-martial and other military justice and administrative proceedings. He served as a Special Victims Prosecutor while on active duty in the Navy JAG was designated as a Military Justice Specialist by the Judge Advocate General of the Navy.