In United States v. McClour, No. 16-0455/AF (grant discussed here), and United States v. Taylor, No. 16-0482/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt.

Both McClour and Taylor are Air Force cases.

But the problematic instruction has also been used by military judges in the Naval service, and yesterday CAAF granted review of this issue in a Marine Corps case:

No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

7 Responses to “CAAF grants a McClour trailer from the Marine Corps”

  1. LT Weinberg says:

    To echo Silver Fox’s comment on the post about the McClour grant, if there’s anything wrong with this instruction, it’s “firmly convinced,” not “must” instead of “should.”
    I don’t read Martin Linen Supply and the cases cited therein as saying that an instruction is improper if it doesn’t leave room for jury nullification.

  2. Lone Bear says:

    But isn’t it permissible to acquit someone who is guilty based on an unjust application of the law? Isn’t that one of the protections granted by the Constitution and one of the reasons there is a jury system in the first place? A judge could determine the guilt or innocence, but the jury system allows an accused to step outside anyone associated with the government and argue that an injustice has occurred. I haven’t dug down on the case law for this one, but I do think it’s an important principle in the justice system.

  3. Charlie Gittins says:

    I had not heard of the Martin Linens case before, so I read it.  It doesn’t have anything to do with jury instructions; it deals with whether the G may appeal a judgment of acquittal entered by the judge under the Federal Rules of Criminal Procedure.  I guess I must be missing something.

  4. Zachary D Spilman says:

    The operative language in Martin Linen, Charlie Gittins, is:

    [I]n a jury trial, the primary finders of fact are the jurors. Their overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction. For this reason, a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U. S. 51, 156 U. S. 105 (1895); Carpenters v. United States, 330 U. S. 395,. 330 U. S. 408 (1947), regardless of how overwhelmingly the evidence may point in that direction. The trial judge is thereby barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.

    30 U.S. 564, 572-73.

    There is, of course, an argument that this is dicta.

    There is also the fact that a court-martial panel is not a jury.

    But a military judge ordering a panel to convict an accused (under any circumstances) is deeply problematic, from an appearance-of-fairness perspective if not an actual fairness one. After all, we follow orders or people die.

    Ultimately, however, the fact that military prosecutors resorted to such tactics to win convictions (and, presumably, foot-stomped on the point during argument) speaks volumes. 

  5. Cheap Seats says:

    I guess I’m having a problem seeing this as the MJ ordering a panel to convict.  The MJ is saying IF you are firmly convinced of the accused’s guilt, then you must find him guilty.  If not, you must acquit.  The order is not to convict, the order is to follow the law.  What is so abhorrent about that?  Now as to the “firmly convinced” language, I have fought against that language as a DC as I believe it is too close to “clear and convincing” and thus lowering the burden on the G.

  6. Zachary D Spilman says:

    The point, Cheap Seats, is that the law does not require a conviction, while the instruction does. 

    “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict regardless of how overwhelmingly the evidence may point in that direction.” (citations omitted).

  7. LT Weinberg says:

    ZS,
     
    As I read that quotation, all it says is that the judge may not usurp the jury’s role as fact finder by saying I find the evidence overwhelming, so now you must convict. It doesn’t follow that it’s improper to tell the jury if you find the evidence of guilt overwhelming then you must convict. The defense’s position on this matter is tantamount to saying that for an instruction to be proper, it must leave room for nullification. It’s often said that a jury has the practical power to nullify, but not the legal right. There’s no legal requirement that the instruction include a nod to this power.