The short answer to my own question is simply, No . . . at least not the majority opinion. So why do I write about it you ask? Scalia’s dissent, and what a dissent it is. Scalia decided to chart his own course in Resendiz and decide the issue on which certiorari was granted, a novel approach for today’s Supreme Court. The granted issue was whether the failure to allege an overt act in an attempt indictment was a structural error not susceptible to harmless error review. Justice Scalia’s analysis of the historical precedent that indictments must allege all elements of an offense led him to conclude, contrary to the majority, that if there is a history of alleging all elements in the indictment, the failure to include an element is strutural error. The majority did not find the practice persuasive and instead found, ” Not only does the word ‘attempt’ as used in common parlance connote action rather than mere intent, but more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements.” The majority concluded that use of the word attempt and the time and date of the offense sufficiently protected the accused from double jeopardy.
Now the military connection: unlike civilian practice there is a clear historical requirement that each and every element of an offense be plead on the charge sheet and submitted to the Art. 32 officer for investigation, even going so far as to require surplusage like “on active duty” in the charge sheet. Justice Scalia’s analysis and the majority’s analysis would both conclude that if the system’s historical precedent required allegation of every element of the offense in the indictment, failure to allege the element in the indictment would be error (the majority dodged the strutural vs. harmless error question). How then is failure to allege the functional equivalent of an element of a military capital crime, i.e. aggravating factors under RCM 1004, not a structural defect in the charge sheet of every capital military case? And, therefore, also subject to structural error and not harmless error review? I’m a little verklempt! Talk amongst yourselves. I’ll give you a topic: No Man’s personal crusade to have Ring v. Arizona applied to capital courts-martial.