Supreme Court Update

6/5/2021

United States v. Bess. Those following the cert. petition with the U.S. Supreme Court previously reported here filed by Pedro Bess, a Black U.S. sailor challenging the secretive process of how panel members were selected where he was convicted by an all-white jury of sexual misconduct against white women. Many of us already argue that the convening authority has an unlimited number of peremptory challenges through the selection process so why should trial counsel have any at trial and the defense so few.

Petition.
Government Response.
Bess's Reply.

Cheers, PC.

7 Comments

Isaac Kennen

6/6/2021 07:33:17 am

From the petition:

“The Convening Authority’s member selection process resulted in four hand- selected all-White general court-martial panels (juries) for four Black servicemembers accused of sex offenses in less than a year.”

Lone Bear

6/6/2021 12:25:07 pm

Hope the Supremes give it a look. Bess really lays out some systemic problems, and the facts of this case makes some of the issues look intentional rather than just part of the process.

Reader

6/6/2021 08:07:44 pm

“This court cannot even be sure of the members’ race as the record is absent of any questions posed during voir dire to the members by either counsel or the military judge regarding the members’ racial or ethnic background.” Bess, NMCCA Slip Opinion, at 16.

“...because the questionnaires did not have this information, and because Appellant declined to inquire into the races during voir dire, we don’t know with certainty what race any member save one identifies as.” Bess, 81 M.J. 1, 7 (C.A.A.F. 2020).

“I see no reason to question the good faith of Appellant and his counsel in assuming that none of the panel members at his court-martial was African American based on outward appearances. But this Court cannot rely on this assumption in deciding this case because nothing in the record provides a basis for concluding that the assumption is correct.” Concurring Opinion of Judge Maggs.

“Were there any African Americans on the panel at Appellant’s court-martial?” Dissenting Opinion of Judge Ohlson.

“As the record currently stands, we do not know if . . . all-white panels may have been assigned to cases involving African American defendants accused of sexual offenses.” Dissenting Opinion of Judge Sparks.

Philip D. Cave link

6/7/2021 07:28:38 am

Was this case suitable for a Dubay hearing ordered by NMCCA (or CAAF)? If, on what little record there is and the seriousness of the issue, the defense had not done enough--Dubay?

Also, is there anything in the record from the Government that contradicts (or explains) the assertions made by the defense as offiicers of the court?

Big Dawg

6/7/2021 06:31:58 pm

Phil, isn’t a Dubay hearing discretionary?

Philip D. Cave link

6/7/2021 10:42:46 pm

Yes.

Lone Bear

6/7/2021 09:05:41 am

Seems like a head in the sand response to me, by an all white NMCCA panel. It was an all white panel, but turning a blind eye is easier for the court. Or blame the defense. I’m sure their voir dire questions to the all white panel should have been about how white they were, good start for the defense there. Any chance we can voir dire the court?

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