The nation’s highest military court has thrown out the 2012 rape conviction of a Coast Guard enlisted man because admirals and prosecutors packed the seven-member jury with five women, four of whom held jobs as advocates for victims of sexual assault.
In a 5-0 ruling that could change how the military conducts sex abuse trials, the U.S. Court of Appeals for the Armed Forces unleashed caustic criticism of all involved.
From the Coast Guard commandant down to an appellate court to the original trial judge, the high court said all contributed to a “stain on the military justice system.” The military has been under intense pressure to wipe out sexual harassment and assault, the five civilian judges noted.
The opinion, delivered by Judge Margaret A. Ryan, said the four admirals who played a role in assembling the officer and enlisted jury pool produced an illegal “gender-based court stacking.” She suggested that the admirals’ role amounted to unlawful command influence, which military law analysts see as the enemy of fair trials for service members.
The court ruling said the trial judge “failed to conduct even a rudimentary investigation” into defense attorneys’ complaints of an unfair jury.
It also said the Coast Guard Court of Criminal Appeals failed in its duty to protect against unlawful command influence as it “rationalized the error away as a benign effort to seek inclusiveness.”
“Yet 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,” Judge Ryan and the four other judges wrote.
Even worse, the high court suggested that the enlisted man never would have been convicted by a more gender-proportionate jury. It said the evidence was so weak that a hearing officer had recommended dismissing the charges. The admiral overseeing the case overruled him.
“The Government’s case was weak, primarily based on the testimony of [name redacted], 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 opinion read.
One of the admirals involved in jury selection is Coast Guard Commandant Paul F. Zukunft. He was the last of four convening authorities of the rape trial.
Adm. Zukunft told a hearing judge that he was unaware of jury stacking. The appeals court rejected his excuse.
“As our cases on court stacking make clear, the actual ignorance of the convening authority does not insulate him or her from the errors or misconduct of his or her subordinates, which are errors affecting the court-martial selection process and court stacking nonetheless,” the opinion read.
“As we stated long ago, even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system,” it read.
The high court judges harshly criticized all involved, implying that their goal was to win a conviction.
“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,” the ruling read. “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.”
The judges used the word “absurdity” in their assessment of assembling a jury pool of 70 percent women based on inclusiveness. “As a matter of common sense, 70 percent is not statistically or otherwise ‘representative,’” their ruling read.
Ten jurors were selected, and seven of them were women. Of those jurors, five women and two men heard evidence, deliberated and rendered a verdict. Of those five women, four were assigned as advocates for victims of sexual misconduct.
The judges threw out the court-martial convictions of Boatswain’s Mate 2nd Class John C. Riesbeck “with prejudice,” meaning the Coast Guard may not retry him.
Petty Officer Riesbeck was convicted of rape, two charges of making false statements and one charge of communicating indecent language. The jury sentenced him to three months of confinement, a reduction in rank and a bad-conduct discharge. Adm. Zukunft approved the punishment.
The appeals court quoted from a fact-finding judge who said, “Senior Coast Guard and Department of Defense leadership faced intense external pressure to do more about preventing and responding to sexual assaults,” and the Coast Guard adopted “a combat-like campaign in the ‘righteous’ cause of fighting sexual assault.”
“Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law,” the appeals court said, adding that the only way to rectify the “clear court stacking” was to dismiss the charges without retrial.
Judge Ryan specifically criticized the Coast Guard appeals court, to which the high court had sent back the case for a new hearing only to have that court reaffirm the conviction.
“The fact that this case with these facts is returned to us for a second time, rather than attended to at trial, at the [post-trial] hearing or by the [appeals court], is a stain on the military justice system,” she wrote. “The duty to protect service members against unlawful command influence is not ours alone.”
The Coast Guard is part of the Department of Homeland Security, but its 40,000 personnel — about 10 percent of whom are women — come under the Uniform Code of Military Justice, as do all military personnel.
“It is gratifying to see a female judge pushing back against the ‘Me Too’ meme by insisting on due process for the accused Coast Guardsman as well as the accuser in this case,” said Elaine Donnelly, who heads the Center for Military Readiness. “The court also deserves praise for holding accountable Admiral Zukunft, who was involved in what Judge Margaret A. Ryan described as ‘gender-based court stacking’ with professional victims advocates.”
Mrs. Donnelly noted that it was Adm. Zukunft who announced in August his opposition to President Trump’s decision to ban transgender people from joining the military.
That issue remains in the courts as the Pentagon follows a judge’s order and is allowing transgender candidates to enlist.
Intense media focus in recent years centered on sexual abuse in the military. Last year, the scandal spilled with big splashes into the worlds of entertainment, journalism, politics and the arts, with scores of accused actors, directors, photographers, government officials, musicians, reporters and editors.
• Rowan Scarborough can be reached at firstname.lastname@example.org.
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