Prof. Vladeck had raised the issue in the following supplement to a petition for review in United States v. Scott, an AF case. Document here. The petition was denied March 3, 2022.
Opening brief: https://justsecurity.org/wp-content/uploads/2022/02/Scott-USCA-Dkt.-No.-22-0084-AF-Supplement-to-Petition-for-Grant-of-Review-2-Feb-22.pdf…
U.S. response: https://justsecurity.org/wp-content/uploads/2022/02/Scott-22-0084-AF-United-States-Answer-to-Supplement-to-Petition-for-Grant-of-Review-22-Feb-22.pdf…
Our reply: https://justsecurity.org/wp-content/uploads/2022/02/Scott-USCA-Dkt.-No.-22-0084-AF-Reply-to-Governments-Answer-to-Supplement-to-Petition-for-Grant-of-Review-25-Feb-22.pdf
On February 24, 2022, the ACCA specified this issue,
WHETHER CONVICTIONS OF SERVICEMEMBERS WITHOUT A UNANIMOUS VERDICT FOR OFFENSES UNDER CLAUSE THREE OF ARTICLE, 134, UCMJ, IMPLICATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.
Brief--Government Petition for Writ of Prohibition
Brief--Government Supplement to the Writ-Petition
Here is the brief in opposition to the Writ petition.
Here are links to the POD amicus filings. Query: does United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) have any relevance?
United States v. Ferreira. ARMY MISC 20220034 (A. Cr. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the "Dial" issue. The government also petitioned for a Writ of Prohibition. Likely the petition is similar to that filed in Dial.
A petition has been filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022)..
A reader has suggested reviewing R. v. Thwaite,  WLR 1125,  EWCA Crim 2973,  1 WLR 1125,  1 Cr App Rep 19,  1 Cr App R 19.
MAJ Hugh E. Henson, The Hung Jury: A Court-Martial Dilemma. 35 MIL. L. REV. 59 (1967).
Defense Motion to Reconsider the Stay of Proceedings.
ACCA Order granting a stay of proceedings.
Government motion at ACCA for stay of proceedings.
Links to the Defense motion and the Government reply.
Do Not Fear Change: The Advantages of Proactive Reform on Panel Votes
Currently the Army Court of Criminal Appeals is considering whether or not members of the Army have a Constitutional right to a unanimous conviction vote. This is the inevitable follow on from the Supreme Court decision in 2020 requiring unanimous convictions in all jury trials. For those not familiar with the military system, a conviction requires three quarters of the lay panel to vote guilty while an acquittal only requires a quarter of more of the lay panel to agree there is reasonable doubt. Some states had similar systems, until the Supreme Court outlawed them in 2020. The law now is that a conviction is not proper unless the entire lay jury agrees on it. And the issue presented for court is whether a service member tried before a military panel is also entitled as a matter of due process to an unanimous vote.
How will ACCA decide, how will CAAF decide, and how will the Supreme Court decide the issue when it inevitably reaches them? Those are interesting questions in themselves, but I have another set of questions. Can the military alter the rules now, and should it?
First, the military has a choice. The Rules for Court-Martial (RCM) are made by the President. They are similar in ways to the Rules of Engagement (ROE) in operations. In particular, both contain a mix of policy and law and determine the limitations on timing, means, and methods the government can use. In the case of RCM, the limits relate to the accused; in the case of the ROE to hostile forces. The greatest similarity is that those charged with carrying out either military or judicial operations can ask for changes, and if the changes are policy matters, the requests can be granted. As it stands, the current voting procedure is a matter of policy and so can be changed now.
Second, is this traditional voting policy best? If ROE inhibit mission accomplishment, it is the obligation of a commander to request change. If the RCM inhibit mission accomplishment, the service Judge Advocates should ask for change. Like all systems of justice, a prime goal for military justice is to do justice and be seen as doing justice. The courts themselves can determine whether the current procedure is unjust, but a new policy of unanimous verdicts is likely to be seen as more just for a number of reasons.
Having a set of rules for determining guilt that differs from every court in the United States does not support a favorable public perception from two perspectives. From the accused’s perspective, he would assume he is more likely to be convicted in a military court because labeling him as guilty does not require all voters to agree. This does not look like equal justice to those subject to the system.
From the perspective of victims, there are several problems. Under the current system with a standard panel of eight persons, if three have reservations about guilt, they will vote not guilty and the full verdict will be not guilty. This acquittal acts as an exoneration. In the civilian context, you are only so exonerated if all members of the jury share the doubts of the three. Moreover, military policy in separations fully applies the principle of exoneration for enlisted Soldiers. This means that a Soldier may not be separated on the basis of the charges related to an acquittal. They get to stay in the service, perhaps with their accusers. Because of this difference in voting, an unknown percentage of military acquittals aren’t acquittals at all. They are mistrials, or they would be in the civilian world. Treating mistrials as acquittals also means that same unknown but measurable percentage of victims are told the accused is exonerated when that was not proven. The poor satisfaction rating sexual assault victims ascribe to the court-martial process is likely connected in part to perceptions created by a voting procedure that favors finality over accuracy.
Third, there was a time when the voting procedure made more sense because of the speed needed to complete trials. Indeed, if you review the records of World War II when tens of thousands of trials were happening annually, there were specific speed completion timelines given to units from the Pentagon and most cases were closed from incident to finding in less than 90 days. This is no longer the case. However, there might be conditions arising in international armed conflict where the benefits of speed weigh in the continued interests of the military. A rule change can account for this by preserving the current supermajority system for times of war.
Reasonable and rapid changes to the RCM requiring peacetime unanimity on verdicts will protect the integrity of current military verdicts and respect for the justice system. Any nonunanimous verdict, whether guilty or not guilty, should be a mistrial on that specification. An exception should be kept for times of war and under compelling military necessity. This change would serve the interest of both the accused and the victims. Our leaders should not wait for a high court to compel action.
LTC Blake Williams is a fellow and instructor in the law of armed conflict with the International Institute of Humanitarian Law in Sanremo, Italy and a US Army Judge Advocate with over eight years of direct military justice experience. He holds a Masters of Operational Studies with Honors from the US Army Command and General Staff College and Fort Leavenworth; a LL.M from the Judge Advocate General's Legal Center and School at Charlottesville, Virginia.
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