Significant military justice event this week (and another next week): Public comments for the recently-proposed changes to the Manual for Courts-Martial (discussed here) are due no later than Tuesday, December 2, 2014.

Additionally, here is a link to a public notice of the next meeting of the Judicial Proceedings Panel (JPP). This meeting will occur next week, on Friday, December 12, 2014, at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. I discussed the DoD’s establishment of the JPP in this post. The panel’s website is:

This week at SCOTUS: A cert petition was filed on November 26th in the Air Force case of Daniel v. United States, No. 14-621. Petitioner was convicted contrary to his pleas of not guilty, by a general court-martial composed of six officer members, of one specification of abusive sexual contact in violation of Article 120 (2012) (he was acquitted of a separate specification of sexual assault). The members sentenced Petitioner to confinement for 12 months, reduction to E-1, and a dishonorable discharge. On review at the AFCCA, Petitioner challenged the constitutionality of the ability of a court-martial panel consisting of six members to return a non-unanimous verdict. The CCA rejected this challenge in an unpublished opinion. United States v. Daniel, No. 38322 (Apr. 1, 2014) (link to slip op.). CAAF summarily affirmed the CCA on September 5, 2014 (CAAF granted review and ordered an exhibit sealed).

The cert petition (available here) renews this challenge to the ability of a court-martial panel of six members to return a non-unanimous verdict, with the following question presented:

In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029 (1978), this Honorable Court ruled that the Fourteenth Amendment was offended when the State of Georgia permitted criminal defendants facing misdemeanor charges to be tried by a jury of five members, even though the verdict was required to be unanimous. This Court explained that as panels get smaller, they begin to suffer from a myriad of structural barriers which render their decisions unreliable. Id., 435 U.S. at 232-36, 98 S.Ct. at 1035-37. The following year, in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623 (1979), this Court expounded upon Ballew and ruled that “the additional authorization of nonunanimous verdicts” amplifies the problem of small panels to the point that even a six-member jury could offend the Constitution. Burch, 441 U.S. at 139, 99 S.Ct. at 1628.

The question presented is whether all federal criminal courts should be bound by the Ballew and Burch holdings, consistent with the preference for civilian standards of due process and modern efforts to align military judicial processes with those employed by the Article III courts. Was Petitioner denied due process of law under the Fifth Amendment when he was tried by a court-martial consisting of six members who were not required to be unanimous in their verdict?

I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on December 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, is on Wednesday, December 3, 2014, at 10 a.m.:

United States v. Henderson

Case summary: A military judge, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of adultery, in violation of Articles 134, UCMJ, 10 U.S.C. §§ 934. The military judge sentenced the appellant to reduction to paygrade E-3 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

Issue: The Government must prove each element of an offense beyond a reasonable doubt. Here, the government failed to introduce any evidence to prove that Sgt Henderson’s alleged adultery was prejudicial to good order and discipline or had a tendency to bring the armed services into disrepute or lower it in the public esteem. Is the adultery conviction legally and factually insufficient?

2 Responses to “This Week in Military Justice – November 30, 2014”

  1. Dew_Process says:

    @ Daniel case: While I agree that this is an important issue that needs to be resolved, the Petition (unless I misread something) does not demonstrate how the issue is preserved.  The QP – which is really two QP’s – overlooks a key hurdle by ignoring the more fundamental issue, viz., must Article I, courts which have criminal jurisdiction satisfy the Fifth Amendment Due Process requirement of unanimity?  The AF CCA decision held “no,” but the Petition does not address where or how that court erred constitutionally.
    As to preservation, for all anyone knows, there was a unanimous verdict, and even if it was not, was there a timely objection or Motion requesting that the members be instructed that the verdict be unanimous?  That’s not mentioned anywhere in the Petition and nothing in the AF CCA decision discusses this.  As such, arguably that part of the CCA decision is dicta.

  2. Lieber says:

    being very pedantic:
    courts-martial are not Article I courts.  they are Article II courts if they are anything.  However, ACCA and CAAF etc. are in fact Article I courts.