Noteworthy from Bess's reply brief:
Peremptory challenges pose a danger of permitting “‘those to discriminate who are of a mind to discriminate.’” But at least they occur in a courtroom. CAs [convening authorities] can exclude Black members behind closed doors before the public, the accused, or the judge see the venire. The CA’s actions are more permissive of discriminatory intent—and thus more dangerous.
Building on this point, it is helpful to further draw out differences between "public prosecutors" (trial counsel) and "backroom prosecutors" (CAs). Some pertinent distinctions:
- Public prosecutors are lawyers. Backroom prosecutors usually are not.
- Public prosecutors are subject to codes of professional ethics. Backroom prosecutors are not.
- Public prosecutors make peremptory challenges in the presence of a judge, defense counsel, the public, and on a verbatim record. Backroom prosecutors make peremptory challenges in secret.
- Public prosecutors are permitted a limited number of peremptory challenges. Backroom prosecutors make an unlimited number of peremptory challenges -- they personally select every member of the jury, a process that also involves not selecting other qualified candidates.
- Public prosecutors are subject to having their peremptory challenges contested and reviewed. Backroom prosecutors, who are high-ranking officers, are afforded great deference and rarely are required to testify about how they made their jury selection decisions.
- Public prosecutors prosecute cases assigned to them. Backroom prosecutors personally select which cases and charges will be tried. This selection occurs at the same time they select jurors for a case.
In Bess, CAAF split 3-2 in deciding that Batson is not applicable to backroom prosecutors. Yet CAAF never addressed the more important question raised above: because of the backroom prosecutor's greater potential for unchecked racial bias in jury selection, what measures should be required that are even stronger than Batson?
CAAF missed this opportunity. Since the sentinel court of military justice blocked further inquiry into the questionable acts of a backroom prosecutor, only the U.S. Supreme Court now can enforce its requirement that military members, like all other Americans, are entitled to “a criminal trial free of racial discrimination in the jury selection process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019).