United States v. Riesbeck

Boatswain’s Mate Second Class John C. Riesbeck (defendant) was charged with sexual assault and was tried by a court-martial made up of officers and enlisted members. Four officers were involved in the selection of Riesbeck’s court-martial panel. The final panel consisted of seven members, including five women, four of whom were victim advocates—individuals specially trained to help victims of sexual violence navigate the military justice system. The proportion of women on the panel far exceeded the proportions of women on the rosters from which members were chosen. At trial, Riesbeck moved to strike the female members of the panel, arguing that they had been improperly selected based on gender. The military judge denied the motion, and Riesbeck was convicted. The Court of Criminal Appeals affirmed. The United States Court of Appeals for the Armed Forces vacated the decision of the Court of Criminal Appeals and remanded the case for a DuBay hearing—an evidentiary hearing for resolving court-martial issues. The DuBay military judge found that: (1) at the time of Riesbeck’s court-martial, senior military leaders were under intense external pressure to punish sexual assaults, (2) the selecting officers did not make a coordinated effort to choose mostly women, and (3) three of the selecting officers likely consciously or unconsciously believed that it was important to have a large number of women on the panel. The Court of Criminal Appeals affirmed Riesbeck’s conviction, and Riesbeck appealed.