CAAF will hear oral argument in the Navy case of United States v. Bess, No. 19-0086/NA (CAAFlog case page), on Wednesday, October 23, 2019, at 9:30 a.m. The court granted review of three issues involving the racial composition of the court-martial panel:
I. Whether the convening authority’s selection of members violated the equal protection requirements of the Fifth Amendment.
II. Whether the convening authority’s selection of members constituted unlawful command influence.
III. Whether the lower court erred in affirming the military judge’s denial of Appellant’s motion to produce evidence of the racial makeup of potential members.
Hospital Corpsman (E-5) Bess was convicted twice by court-martial for indecent acts involving him instructing female patients to be naked for x-ray examinations. CAAF reversed the results of first court-martial in 2016 because the military judge provided additional evidence to the members during deliberations without allowing the defense an opportunity to challenge the reliability of that evidence. United States v. Bess, 75 M.J. 70 (C.A.A.F. Jan. 6, 2016) (CAAFlog case page). Bess was retried later that year, and re-convicted of some of the specifications.
Both of Bess’ convictions were by panels of members, which are the military substitute for a jury. The members of a court-martial are selected by the convening authority based on criteria established by Congress in Article 25. Race is not one of those criteria. Nevertheless, the racial composition of the panel is at the heart of the issues before CAAF, and Bess – who is black – offers CAAF the following description of the beginning of his trial:
At the beginning of the trial, a white military judge, asked a white bailiff, to call in the all-white military venire panel. As the white defense attorneys and the white prosecutors stood at attention as the panel members filed in, it was difficult to reassure HM2 Bess as he leaned over to ask, “Why aren’t there any black people?” This all-white panel would hear evidence from the four complaining witnesses in the case—each of them white.
App. Br. at 6 (quoting record).
Defense counsel objected to the composition of the panel, arguing that the convening authority not only deliberately kept black people off the panel, but also that the convening authority did so in multiple cases. The defense requested additional discovery, including statistics on the racial composition of the unit (the population available to the convening authority for selection), but the military judge denied the request and the trial proceeded, ultimately with an all-white panel of five members. Bess was convicted and sentenced to confinement for one year, reduction to E-3, and a reprimand.
Bess continued to object to the composition of the panel after he was convicted, including in his post-trial submission to the convening authority and during review of his case by the Navy-Marine Corps CCA. The CCA rejected the challenge on the basis that there was no evidence that the convening authority actually knew the race of the members; of the ten members selected by the convening authority, nine provided personal information on questionnaires that did not ask about race (the tenth member used a different questionnaire that did ask about race, but was excused by the military judge).
Nevertheless, Bess’ brief asserts that he has made a prima facie showing that the convening authority “improperly excluded African-Americans from his court-martial panel.” App. Br. at 21. The brief further claims that there is evidence of “a pattern of court-stacking” by the convening authority in “the exclusion of African-American members when there is an African-American accused.” App. Br. at 21. Finally, it argues that the military judge wrongly denied his request for discovery.
The Government Division responds with the baffling claim that the plain error test applies. The plain error test is a method to incentivize timely objections by penalizing the failure to object. The penalty is shifting the burden on appeal to the appellant, forcing him (rather than the prosecution that benefited from the error) to show that there (1) is an error, (2) that the error is plain or obvious, and (3) that the error caused material prejudice to a substantial right. In this case, despite the fact that Bess objected to the composition of the panel, claimed a pattern of race-based exclusion by the convening authority, and asked the military judge for discovery related to race, the Government Division’s brief asserts:
This Court reviews whether a court-martial panel was selected free from systematic exclusion de novo. United States v. Bartee, 76 M.J. 141, 143 (C.A.A.F. 2017). But where an appellant fails to raise a constitutional objection at trial – such as an objection that a racial group was systematically excluded from his court-martial panel under Castaneda v. Partida, 430 U.S. 482 (1977) – this Court reviews for plain error. See United States v. Jones, 78 M.J. 37, 44-45 (C.A.A.F. 2018) (applying plain error where appellant did not make Confrontation Clause objection at trial).
Gov’t Div. Br. at 13-14. It’s hard to determine what the Government Division thinks is adequate to preserve a constitutional objection, if Bess’ objections (that were to the facts and circumstances constituting the issue raised on appeal) are inadequate.
The Government Division also argues that Bess’ defense counsel waived – meaning permanently gave up – his right to additional discovery involving potential members not selected by the convening authority. That discovery relates to whether the equal protection clause was violated by a discriminatory process for selecting members; a claim based in part on the Supreme Court’s decision in Castaneda v. Partida, 430 U.S. 482 (1977), which involved a challenge to a Texas method for selecting a grand jury that resulted in a prima facie showing of discrimination against Mexican-Americans. Seeking to avoid such a showing in this case, the Government Division practically begs Bess to claim ineffective assistance of counsel:
Because Appellant fails to provide information sufficient to demonstrate a prima facie case under Castaneda-and has never claimed Trial Defense Counsel was ineffective for failing to move for the materials necessary to demonstrate such a claim-his claims here fail.
Gov’t Div. Br. at 31.
Yet the Government Division’s brief does raise a fundamental question: was the panel actually all white? Its brief states:
Contrary to what Appellant now asserts as fact, Trial Defense Counsel was unsure of the panel’s racial composition. First, he asserted “that the panel was all white.” (J.A. 192.) Then, when the Military Judge challenged that assertion, he acknowledged it “might not be true.” (J.A. 195.) But he remained “fairly confident” no Member was African American. (J.A. 195.) Yet, when presented with the opportunity, he never sought to confirm his “confiden[ce]” by asking any Member about race during individual voir dire. (J.A. 198-267.)
Trial Defense Counsel’s speculation only grew after trial. In a post-trial clemency request, he once again claimed-without qualification or evidence-that Appellant’s panel was “all-white.” (J.A. 110-11.) He provided no rationale reconciling his newfound post-trial confidence that the Members were “all-white” with his acknowledgment at trial that this “might not be true.” (See J.A. 110-11, 192-95.) Nothing in the interim supports an evidence-based change in certainty.
Because no evidence supports Trial Defense Counsel’s assertions that Appellant’s panel was “all-white”-which even he admitted at trial “might not be true”-his post-trial attempt to racially classify the Members amounts to mere speculation.
Gov’t Div. Br. at 20. In other words, how should the members be racially classified?
Bess’ reply brief argues that the contemporaneous accounts of Bess, his defense counsel, defense supervisory counsel, and the military judge provide adequate evidence of the racial composition of the panel. Reply Br. at 14-18. Bess claims that those observations support a prima facie showing of systematic exclusion in the selection process.
The NAACP Legal Defense & Educational Fund, Inc., filed an amicus brief in support of Bess. The brief identifies the convening authority by name, but not the Staff Judge Advocate or any subordinate commander (all of whom almost certainly played a significant role in member selection, by making nominations that are routinely – though not necessarily – accepted without change). The brief then focuses on application of the Castaneda framework, arguing that Bess has made a prima facie showing of systematic exclusion that creates a presumption of unconstitutional action that the Government Division must rebut. The amicus’ argument is based in part on the structure of the military justice system:
The subjectivity and discretion built into the convening process gives HM2 Bess’s systematic exclusion claim heft, because it strongly “supports” an already established “presumption of discrimination.” Given the subjectivity built into the system and the fact that the convening authority specifically details members to a panel, it “is unlikely that [the convening of all-white panels was] due solely to chance or accident”; this Court should thus “conclude that racial or other class-related factors entered into the selection process” absent “evidence to the contrary.”
Amicus Br. at 25 (quoting Castaneda, 430 U.S. at 494).
• NMCCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Amicus brief in support of Bess
• Blog post: Argument preview