U.S. v. Bess, 80 M.J. 1

First Principles: Constitutional Matters: Equal Protection

1. while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ ‘s prohibition against unlawful command influence
2. there is no constitutional or statutory right to have members of your own race (or any other) included on either a court-martial panel or a civilian jury
3. neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race; what the Fifth Amendment provides is not a promise to include, but rather protection against intentional racial discrimination through exclusion
4. in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety
5. an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion
6. if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment; but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim
7. under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race
8. the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial
9. even if appellant’s allegations that within a one-year period, the convening authority in this case detailed all-white panels in his case and three other cases constituted competent evidence, one year is not a significant period of time and would not establish a prima facie case for systematic discrimination in the selection of members in violation of appellant’s Fifth Amendment equal protections rights; the absence of minorities on a single panel does not make out a prima facie case of systematic exclusion and this is likewise true if there are allegations concerning several panels over a short period of time; even if no African- American members were included in appellant’s case, a fact that is unknown, and even if this fact is combined with the other anecdotal allegations raised by appellant, a prima facie case of exclusion based on race is not established; without contrary indication, the presumption of regularity requires an appellate court to presume that the convening authority carried out the duties imposed upon him by the UCMJ and the MCM; thus it is presumed that the convening authority acted in accordance with Articles 25 and 37, UCMJ, where in this case, the military judge stated that she had not seen any indication of any pattern of discrimination by excluding minority members in prior panels, or any indication of impropriety by the convening authority

First Principles: Constitutional Matters: Right to a Jury Trial

1. an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion

Military Justice Personnel: Military Judge: Discretion

1. where an appellant’s oral discovery request seeks irrelevant information, a military judge does not abuse her discretion by denying it
2. an appellate court reviews a military judge’s ruling on a request for production of evidence for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous or her ruling is influenced by an erroneous view of the law; a military judge also abuses her discretion when a decision is outside the range of choices reasonably arising from the applicable facts and the law

Military Justice Personnel: Court Members: Eligibility/Selection

1. while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ ‘s prohibition against unlawful command influence
2. there is no procedure to ensure a particular racial composition in any court in the United States, and the legal precedent is to the contrary
3. there is no constitutional or statutory right to have members of your own race (or any other) included on either a court-martial panel or a civilian jury
4. neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race; what the Fifth Amendment provides is not a promise to include, but rather protection against intentional racial discrimination through exclusion
5. in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety
6. an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion
7. Article 25(d)(2), UCMJ, provides in relevant part that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; race is not one of the criteria; and by its terms, Article 37(a), UCMJ, expressly prohibits the convening authority from selecting members in an attempt to influence the outcome of the court-martial, on the basis of race or otherwise
8. the convening authority may consider race in detailing members if that consideration serves deliberately to include qualified persons, rather than to exclude members based on race; the word “may” does not equate to “must”
9. if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment; but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim
10. under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race
11. the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial
12. even if appellant’s allegations that within a one-year period, the convening authority in this case detailed all-white panels in his case and three other cases constituted competent evidence, one year is not a significant period of time and would not establish a prima facie case for systematic discrimination in the selection of members in violation of appellant’s Fifth Amendment equal protections rights; the absence of minorities on a single panel does not make out a prima facie case of systematic exclusion and this is likewise true if there are allegations concerning several panels over a short period of time; even if no African- American members were included in appellant’s case, a fact that is unknown, and even if this fact is combined with the other anecdotal allegations raised by appellant, a prima facie case of exclusion based on race is not established; without contrary indication, the presumption of regularity requires an appellate court to presume that the convening authority carried out the duties imposed upon him by the UCMJ and the MCM; thus it is presumed that the convening authority acted in accordance with Articles 25 and 37, UCMJ, where in this case, the military judge stated that she had not seen any indication of any pattern of discrimination by excluding minority members in prior panels, or any indication of impropriety by the convening authority

Military Justice Personnel: Court Members: Peremptory Challenges

1. under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race
2. the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial

Military Justice Personnel: Convening Authority: Generally

1. in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety
2. Article 25(d)(2), UCMJ, provides in relevant part that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; race is not one of the criteria; and by its terms, Article 37(a), UCMJ, expressly prohibits the convening authority from selecting members in an attempt to influence the outcome of the court-martial, on the basis of race or otherwise
3. the convening authority may consider race in detailing members if that consideration serves deliberately to include qualified persons, rather than to exclude members based on race; the word “may” does not equate to “must”
4. if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment; but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim
5. even if appellant’s allegations that within a one-year period, the convening authority in this case detailed all-white panels in his case and three other cases constituted competent evidence, one year is not a significant period of time and would not establish a prima facie case for systematic discrimination in the selection of members in violation of appellant’s Fifth Amendment equal protections rights; the absence of minorities on a single panel does not make out a prima facie case of systematic exclusion and this is likewise true if there are allegations concerning several panels over a short period of time; even if no African- American members were included in appellant’s case, a fact that is unknown, and even if this fact is combined with the other anecdotal allegations raised by appellant, a prima facie case of exclusion based on race is not established; without contrary indication, the presumption of regularity requires an appellate court to presume that the convening authority carried out the duties imposed upon him by the UCMJ and the MCM; thus it is presumed that the convening authority acted in accordance with Articles 25 and 37, UCMJ, where in this case, the military judge stated that she had not seen any indication of any pattern of discrimination by excluding minority members in prior panels, or any indication of impropriety by the convening authority

Trial Stages: Pretrial: Discovery

1. where an appellant’s oral discovery request seeks irrelevant information, a military judge does not abuse her discretion by denying it
2. an accused is entitled to the production of relevant and necessary evidence
3. in this case, the military judge did not abuse her discretion in denying appellant’s motion to produce a statistical racial breakdown of the convening authority’s command where the information sought by appellant was irrelevant because the information requested had little to do with the available pool of members and because the information requested would have done nothing to add to the legal force of appellant’s observation at trial that he was African-American and it appeared the court members were not; appellant’s request for a racial breakdown of the convening authority’s command suffered two shortcomings; first, the request covered only the convening authority’s command, which is only a subset of the total eligible pool of members, and second, a racial breakdown alone would not reveal enough detail to discern who would be eligible to serve on a panel
4. the mere racial composition of a court-martial, without more, does not make discovery into the detailing process relevant and necessary

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. where a CCA’s findings are neither clearly erroneous nor unsupported by the record, the CAAF defers to those factual findings

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where, at trial, appellant cited Batson v. Kentucky, 476 U.S. 79 (1986), and referenced a possible pattern of discrimination in recent cases, he adequately preserved for appeal his Fifth Amendment argument that a racial group was systematically excluded from his court-martial

Trial Stages: Appeals: Remedies › DuBay/Factfinding hearing

1. (a DuBay (17 CMA 411, 37 CMR 411 (1967) hearing is a creature of judicial fiat rather than statute; it was created to permit an accused to gather additional evidence and resolve conflicting evidence where (1) an issue, such as ineffective assistance of counsel, was discovered after trial, or (2) a request made at trial was improperly denied; the goal in either case is to develop a record so that the appellate court can resolve the issues presented)
2. where a post-trial claim is inadequate on its face, or facially adequate yet conclusively refuted by the record, a DuBay hearing is unnecessary; the threshold triggering further inquiry should be low, but it must be more than a bare allegation or mere speculation
3. in this case, appellant was not entitled to a DuBay hearing where there was no effort made at trial to develop a record on any relevant facts, and the claims on appeal rested on pure speculation; appellant failed to present a scintilla of evidence that the convening authority even knew the race of more than one person detailed to the panel or had any malintent in exercising his duty in selecting members under Article 25, UCMJ; moreover, the population statistics appellant sought would prove nothing; the record here did not present a dispute of material fact or otherwise raise a reasonable possibility of a colorable claim that could be developed through a DuBay hearing where (1) only one questionnaire indicated race, (2) there was zero evidence that the convening order was amended to add or remove racially representative members for this particular case, and (3) the record did not reflect with certainty the actual racial composition of appellant’s panel; appellant’s speculative assertions did not merit a DuBay hearing
4. to the extent appellant seeks information that was available yet neither requested nor pursued at trial, appellant has waived any right to further exploration in a DuBay hearing

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where a CCA’s findings are neither clearly erroneous nor unsupported by the record, the CAAF defers to those factual findings
2. where, at trial, appellant adequately preserved for appeal his Fifth Amendment argument that a racial group was systematically excluded from his court-martial, an appellate court reviews de novo, rather than for plain error, the question of law as to whether the convening authority’s selection of members violated the Fifth Amendment’s implicit guarantee of equal protection of the laws
3. unlawful command influence claims are reviewed by an appellate court de novo
4. an appellate court reviews a military judge’s ruling on a request for production of evidence for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous or her ruling is influenced by an erroneous view of the law; a military judge also abuses her discretion when a decision is outside the range of choices reasonably arising from the applicable facts and the law

Miscellaneous Matters: Command Influence: Generally

1. for actual unlawful command influence, the accused must show beyond mere speculation that: (1) facts, that if true, constitute unlawful command influence; (2) the prior proceedings were unfair; (3) the unlawful command influence caused the unfairness
2. apparent unlawful command influence exists when an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding

Miscellaneous Matters: Command Influence: Members

1. while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ’s prohibition against unlawful command influence
2. an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion
3. Article 25(d)(2), UCMJ, provides in relevant part that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; race is not one of the criteria; and by its terms, Article 37(a), UCMJ, expressly prohibits the convening authority from selecting members in an attempt to influence the outcome of the court-martial, on the basis of race or otherwise
4. Article 37(a), UCMJ, provides in part that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case; court stacking is a form of unlawful command influence
5. in this case, where (1) the record shows that the convening authority neither knew nor had reason to know the races of nine of the ten members whom he detailed to appellant’s court-martial, (2) the record does not reveal with certainty the actual racial makeup of appellant’s panel, (3) the record contains no findings of fact by the CCA with respect to allegations regarding the races of members in other courts-martial, and (4) at most, appellant presents a potential anomaly with a few cases within a short period of time, with no evidence whatsoever of intentional discrimination, appellant failed to carry his burden to show unlawful command influence by more than mere speculation; the mere absence of African-Americans on appellant’s panel did not itself raise reasonable doubt as to the procedure used to select his panel
6. in this case, appellant failed to show apparent command influence where a fully informed observer would know the convening authority only knew one member’s race, that no member knew or worked with the convening authority, and, taking a defense declaration at face value, the convening authority was amenable to including diverse members when asked to do so, which appellant failed to do prior to trial; as such, appellant presented no reasonable grounds for an objective, disinterested observer, fully informed of all the facts and circumstances (to include the legal fact that no one is entitled to members of the same race in either a military or civilian court) to harbor a significant doubt about the fairness of the proceedings