The Government's Position on Non-Unanimous Verdicts

8/3/2021

Read the G's filing in Martinez below.

Army JAG

8/4/2021 11:00:40 am

Confusing typo on this 413 issue in the table of contents.

Isaac Kennen

8/5/2021 12:30:02 am

I’m surprised to see that, in discussing the unanimity issue, this brief from the government does not address the most recent SCOTUS decision on the issue- Edwards v. Vannoy, which was issued in May and expounded upon the Ramos v. Louisiana decision (which the brief does address).

Until the Edwards decision in May, a military accused had no case to point to that suggested the right to a unanimous verdict articulated in Ramos was an “extraordinarily weighty” right. Under Weiss v. United States, the military is required to grant the accused the benefit of “extraordinarily weighty” rights as a matter of Fifth Amendment due process.

While Ramos certainly used soaring language to describe the right to a unanimous verdict, it did not expressly quantify the weight of that right. That changed with Edwards.

Writing for the majority in Edwards, Justice Kavanaugh described the Ramos right to a unanimous conviction as being a procedural due process right, and placed it in esteemed company:

“The Court’s decisions in Duncan, Crawford, and Batson were momentous and consequential. All three decisions fundamentally reshaped criminal procedure throughout the United States and significantly expanded the constitutional rights of criminal defendants. One involved the jury-trial right, one involved the original meaning of the Sixth Amendment’s Confrontation Clause, and one involved racial discrimination in jury selection. . . . Ramos is likewise momentous and consequential.”

With Edwards describing unanimity as being a procedural right that is just as “momentous and consequential” as the right to not have racially discriminatory jury selection, or the right to confront one’s accuser, it would seem inevitable that Ramos’ unanimity requirement would also to pass the “extraordinarily weighty” test under Weiss, making it applicable to the military jurisdiction.

The government’s brief needed to wrestle with the implications of Edwards to be complete.

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The Government's Position on Non-Unanimous Verdicts

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