Coast Guard jury-stacking leads to dismissal of charges with prejudice

In a landmark decision by Judge Margaret A. Ryan, the 5-member civilian United States Court of Appeals for the Armed Forces today unanimously reversed a contested Coast Guard general court-martial case and dismissed with prejudice charges of rape by force, communicating indecent language, and making a false official statement. The court found that the convening authority had stacked the panel by detailing a high percentage of women (7 out of 10). This was a form of unlawful command influence. The opinion recites that the inference that the purpose of detailing such a high percentage of women was to affect the findings and sentence

is fully supported by the record. 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. 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. United States v. Hedges, 11 C.M.A. 642, 642, 29 C.M.R. 458, 459 (1960); cf. Dowty, 60 M.J. at 171 (“[A] desire for representativeness cannot be a subterfuge to pack the panel.” (citation omitted)). While we are loath to subscribe to the notion that women are more inclined to reach a finding of guilty in a rape case than men, the facts of this case raise the specter that those tasked with choosing Appellant’s court-martial panel hoped to select members predisposed to “understand the testimony” of sexual assault victims, Smith, 27 M.J. at 250, in accordance with this misguided view.

The court added:

The Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless. 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. Article 25, UCMJ; Article 37, UCMJ; see McClain, 22 M.J. at 132. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice. Article 67(d), UCMJ, 10 U.S.C. § 867(d) (2012); Lewis, 63 M.J. at 416. Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, Article 37, UCMJ; Smith, 27 M.J. at 250−51; McClain, 22 M.J. at 132, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, 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.” Lewis, 63 M.J. at 416.

The strongly-worded decision in United States v. Riesbeck -- which acidly observes (at 4 n.6) that the fact that the case had to reach the Court of Appeals a second time "is a stain on the military justice system" -- can be found here.