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).

Case Links:
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

14 Responses to “Argument Preview: The reason for an all-white panel, in United States v. Bess, No. 19-0086/NA”

  1. Former DC says:

    It would seem that there is a fundamental question that first needs addressed (caveat: I did not read the briefs, so maybe it was covered): do the Supreme Court’s cases concerning race and juries apply to courts-martial members panels?  While my memory is that there is not such a case that so requires (despite the fact that it seems reasonable and appropriate, at least to the extent of banning racial intent), that memory could easily be faulty.  Now, if CAAF (or SCOTUS) wants to apply Batson and its progeny, that is one thing, but it seems that there are some substantial barriers to a direct application (i.e., almost all the selection action happens behind the scenes).
    Beyond that, I have a more practical concern.  Literally from the moment we all arrive at our accession process, we have it pounded into us that race is irrelevant.  I honestly cannot recall knowing a commanding officer (and I have known a lot) who has said or done anything that even smells like taking race into account.  Since that is possibly the fastest way to kill a CO’s career, while I cannot hear what happens in the silence of anyone’s mind, it seems unsurprising to me that such conduct is extraordinarily rare.  The allegation here, of a systematic process, seems unlikely, as it would be fairly overt.
    On top of that, I honestly have to say that the Government makes a valid point – how do you determine race?  Sometimes it seems obvious, but oftentimes not.  Is a convening authority supposed to ask?  I would note the services have, from time to time, taken steps to avoid that problem (e.g., elimination of the display of official photos at selection boards, because it is the only part of a service record that demonstrates race).  Of course, the identification of race a member may espouse might not match that of an outside observer.  How is that supposed to be handled?  Without getting political here, how do we address the person who looks Caucasian but identifies as something else?
    That inevitably leads to the question of “how much is enough”?  Does a panel have to have mixed racial representation of some type?  Must it match the Accused?  How about matching one or more witnesses?  What about if there is a joint trial?  Do we need more than one racial minority represented?  What constitutes racial representation?  This is Pandora’s Box.
    Finally, I take strong issue with one other point: the implicit attack on the makeup of the rest of the personnel detailed to the court-martial, i.e., the military judge, trial counsel, defense counsel, and bailiff.  First, as I said earlier, this is absolutely anti-ethical to our military values.  I don’t care the race (or for that matter, gender, religion, national origin, socioeconomic background, sexual orientation, or anything else!) of the person who is covering me as we are on convoy, who is taking care of me when I am injured, or who is sitting next to me as second chair in a trial.  I care VERY DEEPLY that the person who is sitting there is the ABSOLUTE BEST at doing that job.  I STRONGLY OBJECT to any suggestion that we compromise that demand for competency by injecting race into the question.  The best military judge I ever knew was African-American, and his race makes no difference at all to me – what I want is the best judge there is.  Same for co-counsel: I don’t care if he or she is black, white, red, green, orange, or polka-dotted – I just want someone who is at least as good as me, because we have a client to represent in what is likely to be a hard fought battle.  Injection of race into the assignment of the judge advocates and military judge, or other support personnel, interferes with that demand for competence, and thus, is folly.
    Overall, this appeal seems dangerous.  It would seem that the underlying complaint here is that the convening authority was a racist.  If so, deal with it.  Otherwise, the question of whose race is what should be irrelevant.

  2. SgtDad says:

    …venire panel…
    Is this redundancy common in military courts?  Many years ago, opposing counsel in a big civil trial used this phrase several times.  Finally the judge interrupted with a comment (I forget exactly the words), to which all counsel laughed.

  3. Bill Cassara says:

    Former DC: When an African American accused walks into a courtroom to find that every member of the panel is white and way senior in rank to them, it matters. I believe it is naive for us to think “race doesn’t matter.” Of course it does. It matters in everything we do.  A white 0-6 likely has a very different life experience than a black E-4. That is why the systemic exclusion of blacks is wrong.  I am not sure if that is what happened here, but it needs to be explored and avoided.

  4. stewie says:

    The Alpha Roster (or whatever the equivalent the Navy uses) is PART of the panel selection materials or at least should be…so I don’t understand the MJ rejecting that request. It should have been mandatory that the defense gets it as part of the panel selection process.
    This isn’t apparently just that this particular panel ended up all-white, this appears to be the entire pool is white? Or am I mistaken? If so, it’s crazy that the SJA didn’t make sure that the CA picked at least some POC and women for the panel. I’ve always seen that happen during panel selection with CGs and never seen it not happen.

  5. Bill Cassara says:

    Stewie:  In a Navy GCM years ago, the MJ denied the defense motion to compel member selection data. Every other MJ I have practiced before ordered it. This one refused, and said it was borderline unethical and a fishing expedition.  It was reversed on other grounds, so that issue never went up on appeal.

  6. Zelda Smith says:

    Part of the problem is that Navy Regions don’t have nearly as many people assigned to them anymore even though they convene most of the C-M.  CAs I have observed are in large part picking from member questionnaires provided by other commands — there is no alpha roster.  The CA (or SJA) likely doesn’t personally know the members being selected (or have a way of knowing their race) so it would be quite difficult to “stack” an “all-white” panel or even figure out how to calculate what the demographics of the possible pool were.  

  7. Fisch says:

    Former DC, 
    AR 635-200 had a provision that required a board to be made up of at least one minority member if the respondent was in a minority group, if one was available.  I am pretty sure there are Supreme Court cases regarding racial makeup of juries.  Because a panel is not a jury, I don’t know if the analysis would be the same.  
    I know that race should not come into play in matters of justice, but it does.  I’m often intrigued when i hear opinions like yours regarding racial issues in the military.  I had a case where my co-counsel and i differed in opinion regarding a racial consideration. He said that it did not matter at all.  I said that it helped our case.  
    If I walked into a courtroom as an accused and everyone was non-white, I would feel concerned.

  8. stewie says:

    It’s always interesting to me that the vast majority of folks who say there are no racial issues in the military are, shall we say, pigment challenged.
    Probably similar phenomena with the cohort who is most likely to say gender doesn’t matter.

  9. CorsairF4U says:

    @Former DC,
    I’m not saying this to be mean, but you must be white.  I say this because I can guarantee you, race and the biases people have regarding race absolutely matters, and to those minority accused sitting in the dock for the courts-martial, it absolutely plays a role.  The ideal would be that race “doesn’t matter”, but, and especially in the U.S. military, it plays a role, right from promotions to selection for assignments, to, well, everything.  As stewie said, some people will say “gender doesn’t matter”, but tell that to a female who is facing a court martial with a male DC, male TC, male judge, and an all male panel.  Even worse if you have the same all white male court martial but have a black female victim of sexual assault and a white male accused. Bet you it would matter then.

  10. Advocaat says:

    Race matters and I think diverse panels are a pathway to ensuring differing views are heard during deliberations.  Defense counsel can use Art 25 to their advantage to ask for the panel they’d like to see; the accused’s written request for an enlisted panel is an ideal vehicle.  If the CA refuses, call him/her as a witness as part of your motion to dismiss. 

  11. Marine JAG says:

    It’s also important to note that this specific case had to do with cross-racial identification. Even assuming race shouldn’t matter (which it 100% does), it’s more important in cases where race is at issue. If I’m an accused, I want people on my panel who are comfortable accepting that cross-racial identification is unreliable – and even better, people who have experienced it.

  12. stewie says:

    Former DC you are definitely a “company man.” Re-reading your post just strikes home how some folks simply take everything at face value and buy in whole hog without any critical assessment or consideration that their beliefs and thoughts or even limited experiences might not be a reliable approximation of the whole.

  13. Bill Cassara says:

    Years ago I represented a white officer accused of a crime against an African American.  The night before trial we got the convening order. 8 black officers, 3 white. Does anyone really think that it was a coincidence? Of course it wasn’t. We wound up going JA (he was acquitted) but it was an obvious case of using race in panel selection.  Yes, Former DC. Race matters.

  14. Vulture says:

    The UCMJ has a phrase for what is being suggested to have happened here.  Unlawful Command Influence.
    Unless this Convening Authority has gone full “Lorge of the Rings” we don’t have a lot of reason to believe that he is the White Wizard.

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