Worth the read

Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, Andrew S. Williams, Brigham Young University, June 5, 2013, 28 BYU Journal of Public Law (April 2014, Forthcoming)


“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military.

The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries.

Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence.

Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law.

Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions.

If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed Forces.


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