Ongoing Litigation--Unanimous Verdicts

3/7/2022

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.

us_v_dial_-_ruling_-_unanimous_verdict.pdf
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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.

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?

CAAF is unlikely to touch this issue at this time - there are a number of cases at the AFCCA and ACCA with this issue pending - if for no other reason than to trigger SCOTUS certiorari jurisdiction. Let the issue percolate in the CCA's first.

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.

May not fit into 62 though...don't see which prong? Gov't could use All Writ Act

1/3/2022 01:17:51 pm

Donald,

I was going shorthand. I think the Army CCA will get it first (on a TJAG certification) and reverse, which will be appealed to CAAF.

I am not familiar with the other cases. Is there another case where a MJ has ruled non-unanimous decisions unconstitutional? That is what seems to make this unusual and extraordinary.

To be sure, the decision is problematic. I cannot see how the government would accede to a court martial with a panel before this MJ. That is because the MJ will make the same ruling again, and it will be appealed again.

I believe that a panel decision that is not unanimous, i.e, resulting in a finding of not guilty, would preclude the government from appealing. It might be that the actual vote could be ferreted out and a finding of guilty could be upheld if the MJ's decision is wrong. But I see a bunch of problems with that from the accused's perspective.

Moreover, jeopardy would attach to a finding of not guilty because there was not unanimity.

So, IMO, this is an extraordinary case, which will eventually require the CAAF to interpret Ramos. I believe that CAAF will find that Ramos is distinguishable because it involved a state court criminal proceeding and that the federal court criminal requirement of a unanimous decision has never applied to the military.

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.

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?

AnnoyingProle

1/3/2022 07:01:10 pm

Allan,

I've heard two main arguments in defense of non-unanimous juries.

First, it provides finality. The military doesn't have hung juries, so one person voting for guilty (or non-guilt) doesn't allow for a mulligan. One could argue that in a system that is meant to reaffirm order and discipline, reducing uncertainty is a good thing. Of course, a fair counter-point is that trials are already long, drawn out affairs, so it's not as though we make quick, certain resolution a paramount value. But the counter-counter might be that an Accused is getting paid, gaining seniority, and earning retirement during that whole drawn out process--also, they stay in the military, with some command being responsible for them throughout.

The second is a safety valve against UCI. By enshrining non-unanimity in the system and forbidding polling, every member always has some plausible deniability--that they could have voted in whichever direction is the popular (or rather, the non-outrage-inducing one). I think there's value there--especially given the examples we see of national focus and emotion surrounding high-profile cases.

Do those values outweigh the virtues of empowering a single dissenter to stop a trial? Or, put differently, are those arguments outweighed by the manner in which non-unanimous verdicts lower the burden of proof to a conviction?

Personally, I'd say if we civilianized it; say, ADSEPing a sailor after a 32/grand jury determination, then handing them off to a specialized DOJ unit for military prosecutions, and allowing for a reinstatement process if acquitted, that'd wipe out almost all the concerns in both points (but of course, in that process, unanimity would be required, as they'd probably be being tried as civilians).

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.

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.

I'm operating from the pragmatic assumption that if we transitioned to a unanimous verdicts, it'd be modelled after federal juries.

Lawyer

1/4/2022 09:10:53 pm

AnnoyingProle,

One would hope that Convening Authorities advised by their staff judge advocates applying Article 25 faithfully -- that is, to choose "members . . . as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament" -- would not choose racist or sexist members on a consistent basis.

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.

And where does the "racist" or "sexist" juror come from? Why isn't voir dire sufficient to address that concern?

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).

If, however, as Ortiz suggests, that the military's Article I, judiciary, does indeed possess "judicial power" as recognized under Article III, does Chief Justice Marshall's famous opinion in McCulloch v. Maryland, 17 U.S. 316 (1819) [“we must never forget that it is a constitution we are expounding.”] control?

The Constitutional issues here run deep, e.g., if, as Ramos suggests, unanimity is a component of Due Process in criminal cases, does Congress have any authority under its "Make Rules Clause" and the "Necessary and Proper" Clause, to restrict or diminish due process vis-a-vis courts-martial, and if so, to what extent?

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.

The ruling also plainly errs in saying that "Congress has since required a unanimous guilty verdict in capital courts-martial," citing art. 52(b)(2). In fact, a finding of guilty to a capitally referred charge is determined by a 3/4 vote. Art. 52(b)(2) concerns the SENTENCE, not the "verdict." There is a collateral consequence to a non-unanimous verdict on a capitally referred charge -- under art. 52(b)(2) and R.C.M. 1004(a)(2)(A), the sentence can't include death in a contested case absent a unanimous finding of guilty of a death-eligible offense. But an 11-1 vote to convict on a capitally referred charge results in a conviction. (Before the Military Justice Act of 2016, there was a requirement for a unanimous verdict for an offense for which death was mandatory, i.e., spying. But the Military Justice Act of 2016 eliminated all mandatory-death offenses.)

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.

I think the point the MJ was making was that Congress has required unanimous verdicts for certain cases, the decision not to do it in all cases is arbitrary.

DON CHRISTENSEN

1/6/2022 08:54:15 pm

Dwight is correct. As he wrote:

"There is a collateral consequence to a non-unanimous verdict on a capitally referred charge -- under art. 52(b)(2) and R.C.M. 1004(a)(2)(A), the sentence can't include death in a contested case absent a unanimous finding of guilty of a death-eligible offense."

If the vote is 11 -1 guilty in a capital case, the accused is still guilty of murder but will proceed to sentencing as if the case was referred non-capital. Unanimity is required only for death to be a possible punishment, but under this judge's ruling the same 11-1 verdict would result in a finding of not guilty. Dwight's point was that there is not a requirement for unanimity for a finding of guilty for any offense under the UCMJ contrary to what the judge wrote.

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Ongoing Litigation--Unanimous Verdicts

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