Exercising his authority under 10 U.S.C. § 825, a military commander hand-selected ten White members to sit on a general court-martial panel—the military equivalent of a jury—for a Black man charged with sexual misconduct against White women.  Before selecting this all-White panel, the commander received a report showing the White women first identified their perpetrator not by a name, but by the color of his skin: Black. As the members entered the courtroom, the accused Black man, Hospital Corpsman Petty Officer Second Class (HM2) Pedro Bess, leaned towards his counsel and asked about the panel’s racial composition. His counsel stood, presented the issue to the military judge, challenged the panel on equal protection grounds, and moved for discovery. Reasoning that she could not see the members’ race, the military judge found no issue with the all-White panel. Later, the hand-selected White members convicted HM2 Bess. The lower courts affirmed without additional fact-finding, and to date, no one has answered HM2 Bess’s question about his panel:

“Why aren’t there any Black people?”

The Questions Presented are: (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess’ case for additional factfinding.

Bess v. United States. (SCOTUSBlog)

United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020).

United States v. Bess, 74 M.J. 70 (C.A.A.F. 2016).

United States v. Bess, No. 201300311, 2018 CCA LEXIS 476 (N-M. Ct. Crim. App. Oct. 4, 2018) (unpub.).

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