A court-martial error that stacked the jury against a military member

The composition of a court-martial panel

In the military justice system, one of the most curious and problematic procedures is that the convening authority details the members of the court-martial panel (i.e, the jury).[1]  Put simply, the one who charges the accused with the crime also picks the jury.[2]  This is undoubtedly why a common issue on appeal is whether the court-martial panel was improper.[3]  Worse, the qualifications for those who can be picked slant the scales to older and more senior military members.[4]  Despite all the problems, however, the practice continues and will likely do so into the foreseeable future.

So, what could possibly go wrong

It is not uncommon for errors to occur in the court-martial panel and for the courts, in particular the Court of Appeals for the Armed Forces, to correct these errors.  Such is the case in the recent matter of United States v. Riesbeck.[5]  In Riesbeck, a Coast Guard member was charged with, among other things, rape by force.[6]  In this case, the convening authorities[7] were provided a list of Coast Guard members eligible to sit on the court-martial panel.  The composition of the “pool” of possibilities included officers and enlisted.  Of the officers, only 20% were women.  Of the enlisted, only 13% were women.  Despite these low percentages, the convening authorities ultimately picked a court-martial panel consisting of 70% women.  Worse yet, after voir dire (where members are excluded for various reasons), 57% of the panel was also victim advocates who assist rape victims in the military.

The Court of Appeals for the Armed Forces is not amused

In what can only be called a scathing decision, the Court of Appeals for the Armed Forces excoriates the military judge and the Coast Guard Court of Criminal Appeals for their handling of the case.  Indeed, the Court of Appeals for the Armed Forces called this handling “a stain on the military justice system,” which used “pure sophistry” to uphold the accused’s convictions.[8]  In order to cleanse the record of such an obvious injustice, the Court of Appeals for the Armed Forces did something rare – it overturned the convictions with prejudice, meaning the accused could never be tried again for the offenses.[9]  In coming to this conclusion, the Court of Appeals for the Armed Forces held that

[d]ue to the patent and intolerable efforts to manipulate the member selection process, [against] every requirement of law . . . 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.

Notably however, while the Court of Appeals for the Armed Forces ultimately corrected the error, the accused in this case had served the full term of his sentence solely because the military judge “blithely assert[ed] the issues could be worked out on appeal.”[10]  In other words, the military trial judge “completely abdicat[ed] his responsibility to cleanse the Appellant’s court-martial”[11] and the Court of Criminal Appeals did the same.[12]  This, unfortunately, is what some military members face at courts-martial and on appeal.

If you’re looking for a highly experienced court-martial appeal lawyer to fight an injustice you experienced at a court-martial, please give me a call.  As the former senior legal advisor to the chief judge at the Court of Appeals for the Armed Forces and the former top Appellate Defense Counsel in the United States Air Force, I have a deep understanding of military appeals and how the military appellate courts work.  I’d welcome the opportunity to discuss with you how I can help, and all initial consultations are free of charge.

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[1] See Rule for Courts-Martial 503.

[2] Unfortunately, the portion of the Sixth Amendment of the Constitution of the United States that guarantees the right to a jury trial does not apply to the military.  See United States v. McClain, 22 M.J. 124, 128 (C.A.A.F. 1986) (“courts-martial have never been considered subject to the jury-trial demands of the Constitution.”).  Because of this, “Instead, qualifications for service on courts-martial have been prescribed by Congress in the exercise of its power under Article I, § 8, cl. 14 of the Constitution.”  Id. 

[3] See e.g., United States v. Peters, 74 MJ 31 (C.A.A.F. 2015); United States v. Castillo, 74 MJ 39 (C.A.A.F. 2015).

[4] See Article 25, Uniform Code of Military Justice; R.C.M. 502(a).

[5] Riesbeck, No. 17-0208, (C.A.A.F. Jan. 23, 2018).

[6] Riesbeck, No. 17-0208, slip op. at 3, n.4.

[7] While normally one convening authority is involved in the process of selecting a panel, in this case there were four.  Because it is not important to the purpose of this article, the complexities involved are omitted.

[8] Riesbeck, No. 17-0208, slip op. at 3 n.6, 9.

[9] Riesbeck, No. 17-0208, slip op. 18.

[10] Riesbeck, No. 17-0208, slip op. 4.

[11] Riesbeck, No. 17-0208, slip op. 18.

[12] Riesbeck, No. 17-0208, slip op. at 3, n.4.


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