Unanimous verdict litigation

In United States v. Ferreira. ARMY MISC 20220034 (A. Ct. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the military judge’s decision in United States v. Dial,” that he will instruct the jury that they must have a unanimous vote for guilty to any of the charges.

The government has petitioned for a Writ of Prohibition as they have done in Dial. Here is a link to the government’s petition filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022).

In 1775, the Second Continental Congress adopted the British Articles of War for the Continental army. The Articles did not require unanimous verdicts in courts-martial findings. That a military jury can find a service member guilty with less than unanimous votes remains the law. That law now conflicts with the law in all U.S. jurisdictions since the Supreme Court decided the case of Ramos v. Louisiana in 2020.

The Constitution gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.”  U.S. Const., art. I, § 8, cl. 14. In 1950, Congress adopted the Uniform Code of Military Justice (UCMJ). There had been many complaints about the fairness of military justice during WW-II and there was a great public groundswell arguing for change.

The creation of a court-martial system is a valid and constitutional exercise of Congress’s authority. Dynes v. Hoover, 61 U.S. 65 (1857). Viewed as a separate society administering “rough justice,” the Supreme Court has generally allowed deviations in courts-martial from what might be expected in a civilian court. That does not mean that the Fifth, Sixth, and Eighth Amendments do not apply at courts-martial, they do, however, Congress is “allowed” to deviate when considered necessary for national security and maintaining a well-ordered military capable of performing worldwide missions. See, e.g., Ortiz v. United States, 138 S. Ct. 2165 (2018).

The Supreme has a “Deference Doctrine,” in reviewing acts of congress. And in the military context, the federal courts acknowledge Congress’s “primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military.” Solorio v. United States, 483 U.S. 435, 447 (1987); Chappell v. Wallace, 462 U.S. 296 (1983); Weiss v. United States, 510 U.S. 163 (1994).

There have been various efforts over the years to have the UCMJ changed to require unanimous verdicts as well as make other important changes to the UCMJ.

Our present military code has come to us without fundamental change from the British Articles of War of 1765, which owed their origin to Rome. Whether or not this may tend to account for the remarkable indefiniteness of the punitive articles or help to explain some of the procedural peculiarities of the system, the fact remains that many of the concepts of the existing law military are so foreign to American jurisprudence as to startle and perplex the American lawyer. 

Edmund M. Morgan, The Existing Court-Martial System and the Ansell Army Articles. 29 YALE L. J. 53 (1919-1929). See also, MAJ Terry J. Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T. Ansell35 MIL. L. REV. 1 (1967).

Chris Bray writes that Today’s UCMJ was born out of the summary hanging of 13 American soldiers by the US Army. June 28, 2019. (See also, Chris Bray, Court-Martial: How Military Justice Has Shaped America, From the Revolution to 9/11 and Beyond. W. W. Norton, 2016.) The Uniform Code of Military Justice followed a negative reaction to military justice actions during WW II.

It is important to remember that the greatest time of change in the military justice system usually has occurred immediately following a major war or conflict. This was particularly true after World War I, World War 11, and to some extent during and after Vietnam.

David A. Schlueter, The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice for the 1990’s – A Legal System Looking for Respect, 133 Mil. L. Rev. 1, 9 (1991).

The justifications usually avoidance of too many hung juries with the necessity for a retrial, speed, and combating unlawful influences over the jury. The only change, since 2019, has been that a general court-martial jury is fixed at eight members and three-fourths must find the person guilty. A special court-martial now is fixed at six members. For many years a death penalty case required 12 members who have to find guilt by three-fourths and be unanimous on imposing the death penalty.

While the law seems clearly against Dial and Ferreira, it does behoove military defense lawyers, in all cases and jurisdictions, to raise the issue just in case. Many of us remember United States v. Fosler in which the Court of Appeals for the Armed Forces (CAAF) reversed 60-years of legal history. A dramatic change that affected a large number of cases.

Here are links to the publicly available documents in the Dial litigation.
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.

Feel free to reach out for a consultation with us, your civilian defense counsel, if you have a court-martial case you want to discuss.

We practice in all military jurisdictions and before the Court of Appeals for the Armed Forces (CAAF), the Air Force Court of Criminal Appeals (AFCCA), the Army Court of Criminal Appeals (ACCA), the Coast Guard Court of Criminal Appeals (CGCCA), and the Navy-Marine Corps Court of Criminal Appeals (NMCCA) as military appellate defense counsel.


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