Feb 03

John C. Riesbeck Cleared Of Rape On Appeal Because His Jury Was Stacked With Radical Feminists

John C. Riesbeck’s convictions related to an alleged rape in 2010 were vacated on January 23, 2018 by The United States Court of Appeals for the Armed Forces. To ensure Riesbeck’s conviction the Coast Guard deliberately stacked his jury with female sexual assault victim advocates. The Court ruled: “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.” The evidence against Riesbeck was weak and inconsistent, and the charges against him were dismissed with prejudice. It ended his eight year ordeal that included four appeals court rulings.

Riesbeck’s is the first known case of a person’s convictions being overturned because the jury selection process was polluted by the idea that “political correctness” should be a factor in determining who is in the jury pool. The Coast Guard stacked Riesbeck’s jury pool to ensure he was tried by a majority of female jurors predisposed by behavior, attitude, and training to find him guilty regardless of the weakness of the prosecution’s evidence.

USCGC Midgett (WHEC-726) (Coast Guard photo)

USCGC Midgett (WHEC-726) (Coast Guard photo)

John Riesbeck was a Coast Guard Boatswain’s Mate Second Class (E-5) on the USCGC Midgett (WHEC-726), when in September 2010 the ship made a port call in Puerto Vallarta, Mexico.[1] Riesbeck and other crew members stayed at a hotel in separate rooms. Seaman S. was a female crew member staying at the hotel.[2] She spent time at the hotel swimming pool and drinking alcohol with Riesbeck and other crew members. At some point Riesbeck and S. went back to his hotel room and had sexual intercourse. Their encounter was not permitted by Coast Guard policy barring relationships between people stationed aboard the same vessel.

Seven months later — in April 2011 — during evening colors S. told a new crew member that he would have to relinquish his chosen role to her. Riesbeck who had a superior rank to S., intervened and told the new crew member he would retain his role.

After the incident S. reported to the Coast Guard Investigative Service (CGIS) on April 18, 2011 that Riesbeck had raped her in September 2010. S. said that after consuming a large quantity of alcohol she went with Riesbeck to his hotel room where he raped her while she screamed loudly for 15 to 20 minutes during his assault. She said she fled from his room when she was able to do so.

When questioned Riesbeck admitted he and S. had engaged in consensual sex. He denied she screamed or did anything to dissuade him while they had sex.

The CGIS’ investigating officer recommended the case be dismissed for lack of evidence.

However, a Coast Guard admiral overrode the recommendation of the CGIS, and ordered Riesbeck’s general court martial for forcible rape; making false official statements; and communicating indecent language.

The trial judge denied a motion for funding for Riesbeck’s lawyer and a paralegal to make an trip to Puerto Vallarta to investigate the alleged crime scene. They wanted to check the thickness of the hotel room walls since the complainant allegedly screamed for fifteen to twenty minutes; the route to the hotel room from the swimming pool; the location of hotel video cameras; and traffic through the halls. In denying the motion the judge stated: “I’m not convinced that the failure to allow for this investigatory trip would result in a fundamentally unfair trial.”

Riesbeck’s general court martial took place in Seattle, Washington from June 12-16, 2012.

Riesbeck’s jury was to be comprised of seven “jurors”, and ten Coast Guard officers and enlisted personnel were selected for the jury pool: seven women and three men. During voir dire five of the women responded affirmatively they had served or were currently serving as a sexual assault victim advocate. The other two women responded they had been trained as a sexual assault victim advocate.

There was a recess after the voir dire was taken. When they returned to assert challenges to individual jurors, Riesbeck’s lawyer noted that the jury pool of three men, and seven women who had all either served, were serving, or had been trained as a sexual assault victim advocate — was “unusual,” and that if Riesbeck was convicted his appellate counsel might want to “gather further evidence” and perhaps request a new trial. However, Riesbeck’s lawyer did not formally object or ask to stay the proceedings due to the pool of prospective jurors, but proceeded with his challenges and jury selection.

Four women who had served or were serving as a sexual assault victim advocate, one woman who had been trained as a sexual assault victim advocate, and two of the men were seated as jurors.

The next day Riesbeck’s lawyer placed in the record “newly discovered evidence” provided to him that for the jury the Convening Authority had “decided essentially that the predominate criteria is gender”, and his lawyer stated that doing so violated Article 25 of the Uniform Code of Military Justice. He made a motion to strike all the female jury members, and requested a hearing to call witnesses to determine why there were so many women on the panel: women comprise 16% of Coast Guard personnel, while his jury pool was 70% female. Riesbeck’s lawyer admitted that the day before he accepted the jury panel as selected, but he had reconsidered that in light of the new evidence.

The military judge denied the motion to strike the female jurors as untimely because it wasn’t made the day before during jury selection, and his request for a hearing was refused.

Riesbeck’s trial proceeded.

The prosecution’s case was based on S.’s testimony that after drinking heavily at the hotel swimming pool she went to Riesbeck’s hotel room where he raped her while she screamed for 15 to 20 minutes. She was vague on many details. The prosecution presented no hotel surveillance video tape, hotel staff or guest, family member, friend, or Coast Guard personnel who could corroborate what she said happened, or who she had even told she had been raped.

The prosecution did present the testimony of Boatswain’s Mate Second Class Petty Officer H. He testified that because of Coast Guard policy he waited until he departed being stationed on the Midgett to become a paramour of S.’. He said they decided to cool it in April 2011. H, testified S. never told him that Riesbeck had raped her.

The trial judge overruled an objection of Riesbeck’s lawyer and allowed the prosecution to admit an entry from S.’s journal that she wrote months after the alleged rape: his lawyer unsuccessfully argued the entry was inconsistent with her testimony and she had “three putative motives to lie … the relationship with Petty Officer H, the “run-in” with Riesbeck in April 2011, and the possibility of being in trouble with CGIS [for violating the Coast Guard’s non-sexual relationship policy for shipmates.].”

In his defense Riesbeck presented the hotel guest who was in the room next to his at the time of the alleged rape, and the guest testified he heard no screaming. He also said he thought he would have heard screaming. That contradicted the complainant’s testimony she screamed loudly for 15 to 20 minutes during Riesbeck’s violate assault. The hotel guest also testified that he was entering his room when he saw Riesbeck and Seaman S. wearing swimming suits as they entered Riesbeck’s hotel room.

Riesbeck testified in his defense that he and S. drank alcohol at the pool and then went to his room and had consensual sex.

On June 16, 2012 Riesbeck was convicted by a non-unanimous jury verdict, with all five women voting to convict. (Only a two-thirds majority is required to convict in a non-death penalty case court martial.)

Riesbeck was sentenced to confinement for three months, reduction to E-2, and a bad-conduct discharge.

He appealed.

On Aug. 5, 2014 the Coast Guard Court of Criminal Appeals (CGCCA) affirmed Riesbeck’s convictions. The Court ruled:

  •  The judge properly denied the funds for Riesbeck’s lawyer to investigate the alleged crime scene because it wasn’t “essential to a fair trial”;
  •  That even if the judge erred by admitting the complainant’s journal entry, it was a harmless error;
  •  That Riesbeck’s lawyer waived objecting to the inordinate number of women in the jury pool by failing to make a timely objection; and,
  •  That his lawyer’s failure to timely object to the jury pool wasn’t ineffective assistance of counsel.

Riesbeck appealed to the United States Court of Appeals for the Armed Forces (USCAAF), which on December 11, 2014 ruled the appeals court erred because his lawyer did not waive objecting to the jury pool composition because of an exception in the Rules for Courts-Martial (RCM), and also, “improper member selection can constitute unlawful command influence, an issue that cannot be waived.” The Court remanded to the CGCCA to determine: “Was Appellant Deprived Of A Fair Trial By An Impartial Panel?”

Post-trial evidentiary hearings were held on March 17 and May 14, 2015. Testimony established that the original rooster of personnel for Riesbeck’s jury pool was less than 20% female — consistent with the Coast Guard being 16% female — but by the time of his trial it had been increased to 70%. There was also testimony that final approval of the composition of Riesbeck’s jury pool was made by then Vice Admiral Paul Zukunft, the Commander, Coast Guard Pacific Area. On March 14, 2012 Zukunft signed an order adding enlisted members and removing some officers: the enlisted members added were women who had been sex assault victim advocates. Only the day before Riesbeck’s trial began, Zukunft signed another order removing another officer and adding another enlisted member who was a sex assault victim advocate.

On November 30, 2016 the Coast Guard CCA again affirmed Riesbeck’s convictions. They found that none of the shenanigans by numerous Coast Guard officers to make female sexual assault victim advocates a majority of Riesbeck’s jury deprived him of a fair trial.

United States Court of Appeals for the Armed Forces building in Washington D.C. (Wikipedia.org)

United States Court of Appeals for the Armed Forces building in Washington D.C. (Wikipedia.org)

On April 28, 2017 the USCAAF granted review of the CGCCA’s ruling to determine if Riesbeck’s panel was properly selected and whether he was denied a fair trial.

On January 23, 2018 the USCAAF issued its unanimous (5-0) ruling vacating Riesbeck’s convictions, and ordering dismissal of his charges that were based on weak inconsistent evidence. The Court didn’t sugar-coat that Riesbeck was effectively railroaded by the “politically correct” actions of top level Coast Guard officers and the trial judge to ensure his jury was heavily stacked with women, and then by the Coast Guard Court of Criminal Appeals that looked the other way in affirming his convictions. The Court’s ruling in United States v. Riesbeck, _ M.J._, No. 17-0208/CG (USCAAF., Jan. 23, 2018) stated in part:

“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. [16]

In this case, the Government has not met the burden to show, beyond a reasonable doubt, that Appellant received a fair trial from an impartial panel. [17]

The very panel that tried, convicted, and sentenced Appellant was the same panel “hand-picked” by those charged with selecting Appellant’s court-martial panel. The Government’s case was weak … The Government’s case was so weak, in fact, that the Article 32 Investigating Officer recommended the dismissal of the Article 120, UCMJ, charges against Appellant. In addition, the military judge failed to conduct even a rudimentary investigation into Appellant’s claims of improper member selection, completely abdicating his responsibility to cleanse Appellant’s courtmartial of the unlawful command influence. … And the CCA, rather than correct the obvious error, did not embrace its proper and frankly necessary role in the context of member selection and unlawful command influence, but rather rationalized the error away as a benign effort to seek inclusiveness.” [17-18]

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. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice. Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, [] 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.” [18]

The decision of the United States Coast Guard Court of Criminal Appeals is reversed. The charges and specifications are dismissed with prejudice. The record of trial is returned to the Judge Advocate General of the Coast Guard. [18-19] (Emphasis added to original.)

Click here to read the decision in U.S. v. Riesbeck, _ M.J._, No. 17-0208/CG (CCAF., Jan. 23, 2018).

A Summary of John Riesbeck’s case

  •  September 2010 — Riesbeck and S. are staying at a hotel in Puerto Vallarta, Mexico where after drinking at the hotel pool they go to his room where they have sex.
  •  April 2011 — After Riesbeck publicly reprimanded S., she reported to the Coast Guard Investigative Service (CGIS) that he raped her seven months earlier in Puerto Vallarta.
  •  CGIS recommended the case be dismissed for lack of evidence.
  •  A Coast Guard admiral overrode the CGIS’ recommendation and ordered Riesbeck’s general court martial for forcible rape and other charges.
  •  June 13, 2012 — Riesbeck’s lawyer challenged the composition of his seven person jury comprised of five women who had either acted as, or were trained as a sexual assault victim advocate, and two men.
  •  June 16, 2012 — Convicted by five women jurors in non-unanimous verdict. (Two-third vote only required for conviction.)
  •  August 5, 2014 — Convictions affirmed by Coast Guard Court of Criminal Appeals (CGCCA).
  •  December 11, 2014 — Remanded by the United States Court of Appeals for the Armed Forces (USCAAF) to the CGCCA to determine if Riesbeck was deprived of a fair trial by the jury panel.
  •  Nov. 30, 2016 — Convictions affirmed again by CGCCA that found no wrongdoing in jury selection process.
  •  April 28, 2017 — Review granted by USCAAF to determine if Riesbeck’s panel was properly selected and whether he was denied a fair trial.
  •  January 23, 2018 — Convictions vacated and charges dismissed with prejudice by United States Court of Appeals for the Armed Forces.

The following is a commentary published on redstate.com after Riesbeck’s charges were dismissed that encapsulates the injustice perpetrated on him, and that the current “me too” climate undermines accurately determining if a man has committed a sex related crime:

“We have entered into an age where the “believe women” nonsense has reached hurricane force. The underlying implication of this is that women always tell the truth and men are liars and predators. This is like the “occult child abuse” scare in the 80s where victims have to be believed in order to validate their victimhood.

I don’t know how one goes about making [Riesbeck] whole. He’s served time in confinement. He had his career destroyed. He’s probably been forced to be registered as a sex offender for the past five years. In a just world, everyone who touched this case–the admiral, his staff judge advocate, the trial judge, a couple of appellate panels, the prosecutors, and the court-martial members–would be called to judicial account for their actions.”

Endnotes:
[1] The USCGC Midgett (WHEC-726) is 378 feet long, has a crew of 24 officers and 160 enlisted personnel, and is home ported in Seattle, Washington.
[2] In court documents the complainant was only identified as Seaman S.

February 3, 2018
By Hans Sherrer
Justice Denied

Permanent link to this article: http://justicedenied.org/wordpress/archives/4190