Updated (04032022) 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, [2011] WLR 1125, [2010] EWCA Crim 2973, [2011] 1 WLR 1125, [2011] 1 Cr App Rep 19, [2011] 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.
15 Comments
Allan
1/3/2022 11:24:56 am
My prediction: this will be subject to an interlocutory appeal and overturned by CAAF, with a denial of cert by SCOTUS.
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Donald G Rehkopf, Jr.
1/3/2022 12:30:44 pm
Allan, it would be most instructive if you would state why you think this - there's no Art. 62 jurisdiction; a Writ of Prohibition could be sought, but after Ramos, what's so "extraordinary" about this ruling?
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Ty
1/3/2022 04:28:40 pm
This seems the reverse of the ones pending at the CCA asking for this right...here the trial judge has said the accused will get this right.
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Allan
1/3/2022 01:17:51 pm
Donald,
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Nathan Freeburg
1/3/2022 02:15:31 pm
GAD just gave notice that they're filing a writ to ACCA. Which they obviously had to. The equal protection grounding for the ruling is interesting. At the end of the day I tend to think that ultimately a Ramos challenge will be successful (possibly at the SC) because it's based in the right to an unbiased fact-finder, just like Batson (which has been held to be applicable to the military). But maybe it will be equal protection after all.
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Allan
1/3/2022 02:35:09 pm
I have a question for those who think that non-unanimous juries are a good idea for the military. Why? That is, even if allowable under the constitution, why is a non-unanimous decision of guilt a good thing?
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AnnoyingProle
1/3/2022 07:01:10 pm
Allan,
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Tami a/k/a Princess Leia
1/3/2022 10:22:24 pm
The ruling makes clear an acquittal doesn't need to be unanimous, and there doesn't need to be any polling to find out who voted for not guilty. And without any polling, there's no concern for UCI. As for "good order and discipline," given that Congress has taken authority away from commanders, that justification seems to be going the way of the dodo.
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AnnoyingProle
1/3/2022 11:09:50 pm
Sure, we *could* have a system where one vote = final NG verdict. How many states have that? The feds? Is it desirable? Regardless, would it be politically tenable? And it bears its own injustice issues--where one racist or sexist juror can consistently nullify a case.
Lawyer
1/4/2022 09:10:53 pm
AnnoyingProle,
Tami a/k/a Princess Leia
1/4/2022 11:40:20 am
If we want to avoid "hung" panels, yes, a unanimous verdict is desirable. The military already has a unanimous verdict requirement for death penalty cases, why not extend that requirement to other "serious" offenses, especially those with mandatory minimums.
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Donald G Rehkopf, Jr.
1/5/2022 11:36:54 am
Interesting debate but, is not the more fundamental question this: if the perceived "problem" stems from the Court's prior holding in Ortiz, does the Constitution preclude Congress from legislatively overruling it? Cf., Goldman v. Weinberger, 475 U.S. 503 (1986) [the AF "yarmulke" case, which Congress legislatively overruled]; and 1Lt Dwight H. Sullivan, "THE CONGRESSIONAL RESPONSE TO GOLDMAN V. WEINBERGER, 121 Mil. L. Rev. 125 (1988).
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Dwight Sullivan
1/5/2022 11:55:41 am
[Standard Disclaimer: I offer this comment solely in my personal capacity and it should not be imputed to anyone or anything else] The ruling's rejection of the rationales ACCA identified supporting non-unanimous verdicts appears to depend on assuming a congressional willingness to allow jeopardy to attach upon a dissenting view of as few as 1/12 of the members in a capital case or 1/8 of the members in a non-capital GCM. It seems to me that a rational Congress could determine that it was not willing to allow jeopardy to attach and bar the possibility of a conviction where an initial vote was, say, 11-to-1 to convict. If a rational Congress were to reach that conclusion, then it could also be persuaded by the factors identified by ACCA, thereby warranting authorization for a non-unanimous verdict.
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SY
1/6/2022 07:32:13 pm
Your reading of Art 52(b)(2) is incorrect. Art 52(b)(2) states that for a sentence of death-- there must have been a unanimous verdict for the offense as well as the sentence.
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DON CHRISTENSEN
1/6/2022 08:54:15 pm
Dwight is correct. As he wrote: Your comment will be posted after it is approved.
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