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A servicemember’s rape conviction was reversed because the court-martial member selection process in his case used gender as an important item in the panel’s selection process. The seven-member panel that convicted and sentenced the servicemember was made up of five women, four of whom were victim advocates trained to provide support and counseling to victims of rape and sexual assault.
Although the court-martial panel for the servicemember’s case was chosen from a roster of officers that was only 20 percent female and a pool of enlisted personnel that was only 13 percent female, the panel selected for the court-martial was 70 percent female. Five of the women were victim advocates and, following voir dire and the servicemember’s challenges, the panel consisted of seven members, five of whom were women, and four of whom were victim advocates.
Gender is not a factor under Unif. Code Mil. Justice art. 25, 10 U.S.C.S. § 825 (addressing who may serve on courts-martial), and selection on the basis of gender is generally prohibited. Although there is an exception to provide for a good faith effort to ensure a representative or inclusive panel, no such motive existed in the case.
The United States Court of Appeals for the Armed Forces found that 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. The Government also failed to convince the court that the servicemember received a fair trial from an impartial panel, free from the effects of unlawful command influence.
The court noted that the Government's case against the servicemember was so weak that the Investigating Officer had recommended the dismissal of the charges against him. The court also found that the military judge also failed to conduct even a rudimentary investigation into the servicemember’s claim of improper member selection. The court stated that the United States Coast Guard Court of Criminal Appeals, rather than correcting an obvious error, failed to embrace its role and instead rationalized the error as an acceptable effort to seek inclusiveness. The court held that the error in the case was both so obvious and so egregious that it adversely affected not only the servicemember’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system.
Lexis subscribers can access the full opinion at: United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. Jan. 23, 2018)
Lexis Advanced subscribers can access the full opinion at: United States v. Riesbeck, 2018 CAAF LEXIS 50, 77 M.J. 154
Author: Shari Slawinski, Lexis-Nexis Case Law Editor
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