Women make up just 16 percent of the active-duty Coast Guard force.
So how did a 2012 Coast Guard rape trial seat a panel of seven jurors, five of whom were women -- and four of those five worked as uniformed victims' advocates?
A military appeals court says it's a clear-cut case of senior leaders stacking the deck.
A new opinion handed down by the Court of Appeals for the Armed Forces tosses out the conviction of Boatswain's Mate 2nd Class John C. Riesbeck, saying a series of four flag officers -- including the Coast Guard's now-commandant, Adm. Paul Zukunft -- separately made decisions that resulted in the stacked jury.
The decision speaks to the way politics influences command choices regarding military justice, and provides fodder for critics of the current system, which places subjective tasks such as jury selection in the hands of commanding officers.
The decision was first reported by CAAFlog and the Washington Times.
A Coast Guard spokeswoman, Alana Miller, told Military.com in a statement that the service would "carefully review" the appellate opinion to improve processes and guidance to convening authorities.
"This case illustrates the complexities that come with the pursuit of justice for victims of sexual assault while ensuring the essential fairness and integrity of the military justice system," she said.
When Riesbeck was convicted -- receiving three months' confinement, demotion, and a bad conduct discharge -- he appealed, saying a biased jury panel had infringed on his right to a fair trial, and that objections made during initial trial proceedings had been ignored.
As a result, the Coast Guard Court of Criminal Appeals ordered a DuBay fact-finding hearing to determine what had taken place during Riesbeck's jury selection.
Stacking the Deck?
The court found four admirals had a hand in the final panel: Zukunft; Vice Adm. Manson K. Brown, then-commander of Coast Guard Pacific Area & Defense Forces West; Rear Adm. Christopher Colvin, then-Pacific Area deputy commander; and Rear Adm. June Ryan, then-Pacific Area chief of staff.
Brown, the first to oversee the case, picked 10 officers, six of whom were women. Of the roster of names available to Brown, only 20 percent were women, the court found.
Next, Colvin, then the acting convening authority, selected 10 enlisted Coast Guardsmen to round out the panel. Four of the names he picked were women.
When some of the previously picked panel members had to drop out, Ryan was asked by the government to pick replacements. She chose eight enlisted Coast Guardsmen, three of whom were women. And she ranked those women as her first, second and fourth choices, although she didn't know any of them, according to the court's findings.
When Zukunft took command of the Pacific area and took over authority of the Riesbeck case, he was presented with a group in which women composed 75 percent of the enlisted side and 67 percent of the officer side.
Zukunft was not given information about the gender makeup of the panel and did not probe further, ultimately sending the group forward to trial for the final voir dire process of jury selection.
"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 [Brown, Colvin and Ryan] were conscious or unconscious decisions … that it was very important to have a large number of women on the court,' " said Judge Margaret Ryan, writing for the Court of Appeals for the Armed Forces.
Factors the Uniform Code of Military Justice allows convening authorities to consider when selecting jury panels include age, education, training, experience, length of service and judicial temperament. Gender is never mentioned.
And while there is precedent for intentionally selecting minority jurors to sit on a case with a minority defendant to ensure fair representation, there is none for making sure a jury is packed with individuals who might sympathize with a defendant's alleged victim.
"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," Judge Ryan wrote. "Against that backdrop, purposefully selecting a panel that is seventy percent female, most of whom are victim advocates ... smacks of a panel that was 'hand-picked' by or for the Government."
Perhaps most troubling, the opinion notes that the prosecution's case against Riesbeck was weak, based largely on the testimony of a single alleged victim who was unable to remember many specifics due to intoxication, and was contradicted at trial by other witnesses.
The officer tasked with investigating the facts of the case ahead of trial had even recommended that the rape charge be dismissed.
Congressional Pressure
Eugene Fidell, a former Coast Guard judge advocate who now teaches military justice at Yale Law School, told Military.com it is instructive to look at the timing of the original trial, which took place as Congress moved aggressively to curtail sexual assault in the military.
A year after Riesbeck's conviction, an Air Force general, Lt. Gen. Craig Franklin, was removed from a case for declining to pursue a court-martial against an airman accused of sexual assault.
"It's a perfect storm; it's where all of the gale-force congressional winds on sex offenses intersect with the statute that's supposed to govern the selection of jury members, and I think this incident points to the toxic effects of that mixture," Fidell said. "It also unfortunately underscores the service's inability to police itself."
If the presiding judge had entertained the objection during trial, or if Zukunft or the other flag officers had noticed the inequity of the final panel and investigated further, the case would never have made it to the appeals court, he said.
Fidell said it was impossible to avoid the inference that the senior officials who picked the jury pool felt pressure by Congress to put a "thumb on the scale" by seating a victim-friendly jury to send a message about sexual offenses.
"My message to Congress is, mission accomplished, and shame on you. Because Congress should really stop doing this kind of thing," he said.
At the same time, Fidell said, the case points to the need for updates to the "flawed, 18th-century" military justice system that gave commanders too much authority over criminal proceedings and opened them up to numerous conflicts.
The Military Justice Improvement Act, proposed by New York Sen. Kirsten Gillibrand, he said, would accomplish this by removing commanders' authority over prosecution decisions for serious criminal offenses.
"Get the commanders out of the driver's seat when it comes to deciding who gets prosecuted for what," he said.
-- Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.
