Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.
Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.
That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).
What should the military defense counsel being doing now at trial? One step is easy, but there may be other steps that should be considered.
Step One: file a motion with the trial judge that the members should be instructed that they must have a unanimous vote for any finding of guilty. Most military are already doing this. The military judge will almost certainly deny the motion, but you have put the issue on the record for appeal. Because the voting is a constitutional issue, an Appellant whose case is still under review might benefit from a favorable change in the law while the case is still on appeal.
The Supreme Court has previously held that an appellant might benefit from the change in the law. Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Appeals for the Armed Forces (CAAF) has followed that rule in, for example, United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). There is some suggestion that the retroactivity principle need not always apply–this is fact specific and adds uncertainty. Your military appellate defense lawyer is able to help navigate this problem. CAAF has looked at the issue in United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012) in relation to what remedy to apply.
Step Two. It seems to me that there is an earlier point in the trial where the military defense lawyer needs to object to the nonunanimous verdict rule. At the arraignment, the judge advises the accused of their forum rights–officer members, officer-enlisted members, or judge alone. Here the judge tells the accused about the voting requirement. Perhaps, at this stage, the military defense counsel should object and ask the accused to be advised that the voting will be unanimous. The judge will not do that because, again, under current law, she doesn’t have to.
Why Step Two?
Forum choice is always difficult–some cases are usually best tried by a judge alone most others should be a jury (members) trial. What we don’t know is whether a case that might be best by judge alone would be better as a jury (members) trial if a unanimous verdict is required. It’s a combination of numbers and intuition about who the members are. Some of us more experienced military defense counsel are familiar with the old numbers game of how many members to have on the jury.
So, one of the new issues we’ve been raising has been the denial of a proper forum choice based on the judge’s initial forum and voting advice. This becomes important on appeal where the accused has elected trial by judge alone but would have elected members if the voting had to be unanimous for guilt. It’s rather simple–it might be easier to convince one member to vote not guilty than three.
At Cave & Freeburg, LLP, we try to be creative and thoughtful about your defense and consider all options that might work in your favor.