CAAF will hear oral argument in the Air Force case of United States v. McClour, No. 16-0455/AF (CAAFlog case page), on Wednesday, November 2, 2016, at 2 p.m., at Peterson Air Force Base, Colorado Springs, Colorado. The case presents a single issue that challenges a standard instruction given to members in Air Force courts-martial:

Whether AFCCA erred when it failed to grant relief where the military judge instructed the members, “if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty,” 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.

(emphasis added).

Prior to closing a court-martial for deliberations, “the military judge shall give the members appropriate instructions on findings.” R.C.M. 920(a). Paragraph 2-5-12 of the Military Judges’ Benchbook contains Closing Substantive Instructions on Findings that instruct members on how to decide whether an accused is guilty. Those instructions include direction that:

[I]f on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.

(emphasis added). In the Air Force and sometimes in other services, however, military judges give a different instruction:

If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty.

App. Br. at 3 (emphasis added). Senior Airman (E-4) McClour was convicted after the military judge gave the members in his court-martial the must-convict instruction. Numerous other service members were convicted under similar circumstances; As of this writing CAAF has granted review of eight trailer cases raising the same issue: four from the Air Force, three from the Marine Corps, and one from the Navy.

The granted issue questions whether this must-convict instruction violates United States V. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977). Martin Linen involved a deadlocked jury and a subsequent entry of an acquittal by the district court that was appealed by the Government. The court of appeals determined that the Double Jeopardy Clause barred the appeal and the Supreme Court affirmed, concluding that “there can be no question that the judgments of acquittal entered here by the District Court were ‘acquittals’ in substance, as well as form.” 430 U.S. at 571-572. In so concluding, the Court rejected the Government’s argument that “only a verdict of acquittal formally returned by the jury should absolutely bar further proceedings,” with the observation that while “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . such a limitation on the role of a trial judge, however, has never inhibited his ruling in favor of a criminal defendant.” 430 U.S. at 572-573 (citations omitted).

And so the issue in McClour is whether the must-convict instruction – either generally or under the unique circumstances of a court-martial – is an improper direction to the members to come forward with findings of guilt.

McClour’s brief makes four primary arguments. First, it asserts that a military judge is prohibited from directing a finding of guilty. App. Br. at 7. Next, it notes that Article 51 enumerates certain mandatory instructions, and a must-convict instruction isn’t one of them. App. Br. at 7-8. Third, it asserts that the must-convict instruction conflicts with a different instruction to the members that they must determine guilt in part according to “[their] own conscience.” Br. at 9-10. And finally, it argues that the must-convict instruction deprived McClour of the possibility of nullification:

By instructing the panel members that they “must” convict if the government meets its burden, the military judge instructed the panel they did not have the power to disregard instructions on matters of law. In particular, they could not nullify. This violated Appellant’s legal right to a panel that is authorized to disregard the law. Court-martial members always have the power to disregard instructions on matters of law. . .

App. Br. at 14-15. In addition to these four arguments, McClour’s brief suggests that the military environment requires “additional safeguards to ensure that every conviction is supported by proof beyond a reasonable doubt.” App. Br. at 17-18.

The Government’s response points to civilian cases that approved of use of the same or a substantially identical instruction, including United States v. Mejia, 597 F.3d 1329, 1340 (D.C. Cir. 2010); United States v. Stegmeier, 701 F.3d 574 (8th Cir. 2012); Watts v. United States, 362 A.2d 706, 708-09 (D.C. 1976); and New Jersey v. Ragland, 519 A.2d 1361 (N.J. 1986). The Government also distinguishes Martin Linen as not directly addressing the issue presented in this case. And the Government strongly disputes McClour’s nullification argument:

Appellant next erroneously claims that he has the “legal right to a panel that is authorized to disregard the law.” (App. Br. at 15.) This Court has already dismissed that idea in Hardy, holding “a court-martial panel does not have the right to nullify the lawful instructions of a military judge.” Hardy, 46 M.J. at 74. While it is correct that juries have the “power” to nullify, this power does not arise from an accused’s “legal right to a panel that is authorized to disregard the law.” Id. at 70. Instead, it results as a collateral consequence from policies such as “the requirement for a general verdict, the prohibition against a directed guilty verdict, the protection against double jeopardy, and the rules that protect the deliberative process of a court-martial panel.” Id. at 75. “The courts cannot search the minds of the jurors to find the basis upon which they judge,” and therefore must abide by the jury’s decision to acquit, no matter what the underlying reason might have been. Id. at 71 (quoting United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969)).

Gov’t Br. at 18-19 (emphasis in original). Finally, addressing McClour’s concerns about the military environment, the Government suggests that additional safeguards would rekindle the idea of separate military due process that was finally rejected in United States v. Vazquez, 72 M.J. 13 (C.A.A.F. 2013) (CAAFlog case page).

I don’t believe that CAAF would need to reinstate the concept of military due process in order to find the must-convict instruction problematic in the military environment. The court could determine that military members might interpret the must-convict instruction as an order from the military judge to return only a finding of guilty, when the members could also legally return a finding of not guilty. Put differently, instructing the members that they must acquit (and only acquit) in the absence of proof beyond a reasonable doubt is a complete and accurate statement of the law. Instructing members that they must convict (and only convict) if there is such proof, however, certainly seems to be an incomplete statement of the law because the members could also acquit despite the existence of proof beyond a reasonable doubt.

Yet a significant twist in this case is that defense counsel failed to object to the instruction. While CAAF reviews instructional errors de novo, the failure to object means that the burden is on McClour to prove plain error. CAAF’s precedent does, however, offer a heightened burden for harmlessness in the case of instructional error: “If instructional error is found, because there are constitutional dimensions at play, the appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt.” United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006) (quoting United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006)) (marks omitted).

And so it’s very possible that CAAF will conclude that it is error to give the must-convict instruction, but that the court will not actually grant McClour (or the trailers that don’t involve objection) any relief.

Case Links:
AFCCA’s opinion
Blog post: CAAF to review the closing instructions given in Air Force cases
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

27 Responses to “Argument Preview: Was it proper to instruct the members that they must convict the appellant in United States v. McClour, No. 16-0455/AF”

  1. Joseph Wilkinson says:

    Put differently, instructing the members that they must acquit (and only acquit) in the absence of proof beyond a reasonable doubt is a complete and accurate statement of the law. Instructing members that they must convict (and only convict) if there is such proof, however, certainly seems to be an incomplete statement of the law because the members could also acquit despite the existence of proof beyond a reasonable doubt.
     
    They “could” do so (i.e., they have the raw power to do it), but that doesn’t mean they have the legal right to do it.   Thus, telling people they may not do this thing can be a complete statement of the law, even if they do have the power to violate the law in this regard.   As I noted in an earlier discussion of jury nullification, the CAAF has previously said this:
     
    “The fact that the jury has the power to acquit (as well as convict) by disregarding the instructions of the judge on matters of law does not mean that the panel must be told it is permissible for them to ignore the law. . . That raw power, however, does not equate to a legal right. . . [W]e hold that a court-martial panel does not have the right to nullify the lawful instructions of a military judge.” 
     
    United States v. Hardy, 46 M.J. 67, 74-75 (C.A.A.F. 1997). 

  2. Zeke Kennen says:

    Joseph Wilkinson,
     
     
    Hardy merely establishes that military courts should not *endorse* jury nullification, and that no right to nullification exists.  46 MJ at 72 (“The same considerations that militate against endorsing nullification in civilian criminal trials apply in the military justice system.”) (emphasis added).
     
    Hardy does not establish that nullification is illegal.  Indeed, Hardy acknowledged that the power to nullify is “undisputed.” 46 MJ at 71.
     
    The Air Force’s standard instruction to members that they “must” convict conflates the lack of a right to do some thing with making that thing illegal.  For example, parties have no right to rebuttal argument, but that doesn’t make it illegal for a judge to allow rebuttal.  Telling members that the law requires them to convict if the government proves its case is simply factually incorrect – the power to nullify is “undisputed” according to Hardy.  Factually incorrect instructions are necessarily legally incorrect as well.

  3. Joseph Wilkinson says:

    Hardy does not establish that nullification is illegal.  Indeed, Hardy acknowledged that the power to nullify is “undisputed.” (46 MJ at 71).
     
    Page 71, if I remember, is the beginning of a big discussion of what other courts have said about nullification and the like, before they reach their own conclusions on pages 74-75.  (Which is what I quoted above.  It’s important to read these things in context.)   What the CAAF quite rightly said in its conclusions is that the jury has the “raw power” but not the “legal right” to acquit contrary to the evidence or the law.   In the same passage, the CAAF correctly pointed out that the jury has the “raw power” but not the “legal right” to convict contrary to the evidence, and this is also something the judge should tell juries not to do.  
     
    Jury instructions…like Law of War briefings…are about what’s legally right, not about what you have the “raw power” to do.  If the jury doesn’t have the legal right to do something, then the judge is not violating the Constitution or any other law by telling them they may not do that thing.
     
    The Air Force’s standard instruction to members that they “must” convict conflates the lack of a right to do some thing with making that thing illegal…

     

  4. Joseph Wilkinson says:

    Ugh!  Okay, I have to retype the last paragraph completely then  (site owners, please have mercy and delete two of the three above):
     
    That is not much of a conflation, at least not in this case it’s not.   As I noted in the prior discussion, it’s equivalent to the common civilian court instruction that “This case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.”   In other words, decide according to the evidence and don’t nullify in either direction.  
     
    This is important in any court.  It’s especially important in military court, since that is the final resource for commanders to enforce orders…and the orders, or the commander, may be very unpopular, but he can’t exercise his necessary authority if enforcement is in the hands of people who feel free to “nullify” orders they don’t like.

  5. Zachary D Spilman says:

    The problem, Joseph Wilkinson, is that the must-convict instruction is not “what’s legally right.” The standard should-convict instruction, however, is legally correct. The panel should convict upon determining that the prosecution has proven the elements by legal and competent evidence beyond any reasonable doubt, but the panel is not absolutely required to convict.

    A civilian jury may well ignore a must-convict instruction, but a court-martial panel likely won’t because an instruction is akin to an order and we follow orders or people die.

  6. stewie says:

    And what happens JW, if a jury DOES ignore instructions, or the evidence, and acquits?
     
    Nothing. The accused is free, acquitted, and nothing can change it.
     
    But if they do so and the accused is convicted, then assuming the proper appellate goings-on happen, the case is overturned.
     
    So, in fact, the panel is not in a “must” situation. If it truly were a “must” situation, then the result I laid out above couldn’t happen or would be rectified. I don’t have a problem with the idea that one should not (at least not the judge) encourage jury nullification through instructions (I think the DC on the other certainly should be allowed to remind the panel that ultimately the decision is theirs and theirs alone and that they should reach the fair and just result in the case, whatever that means).
     
    But, telling the panel that they MUST convict is, well, it’s a lie. It isn’t true.

  7. Dew_Process says:

    That the “must convict” language is simply wrong, can be demonstrated by the affirmative defenses of “Entrapment” or “Insanity.” You don’t get to those defenses [and I’m not suggesting that this is limited to those defenses] unless or until the panel finds BRD that the underlying crime was committed.  The Benchbook e.g., says at Inst. 5-6, in relevant part:
     

    Entrapment is a defense when government agents, or people cooperating with them, cause an innocent person to commit a crime which otherwise would not have occurred.
     

    Or the language in the “Insanity” Instruction at Benchbook Inst. 6-4:
     

    You are not to consider this defense unless you have first found that the government has proved beyond a reasonable doubt each element of the offense(s) of (state the alleged offense(s)). In other words, you should vote first on whether the government has proved beyond a reasonable doubt each element of the offense(s). Unless at least two-thirds of the members, that is members, find that each element has been proved, you should return a finding of NOT GUILTY (as to that specification) and you need not consider the issue of mental responsibility.
     

    Only a tribunal hell-bent on convictions or affirming convictions could ignore the inherent conflict the “must convict” language creates.

  8. Joseph Wilkinson says:

    The problem, Joseph Wilkinson, is that the must-convict instruction is not “what’s legally right.”
     
    A mere assertion without argument; juries have the “raw power” to acquit (or convict) contrary to the evidence.  But in the CAAF’s view, this raw power does not translate into a legal right.  You don’t have the legal right to steal, even if you won’t get caught; you must not steal.  It’s not different from the civilian instructions I quote above, which tell juries not to find for either side based on anything but the evidence.
     
    A civilian jury may well ignore a must-convict instruction, but a court-martial panel likely won’t…
     
    If you’re right, we need more law-abiding civilians, then.  If you will ignore the judge’s instructions to convict if the evidence convinces you BRD, you will ignore his instructions to acquit if the evidence does not convince you BRD.   Jurors military and civilian ought to abide by their oaths and duties.   What this rhetoric about “orders to convict” is ignoring is the fact that the order is conditional….if and only if you are convinced of guilt beyond reasonable doubt, then and only then you must convict.  And there’s nothing wrong with that.
     
    And what happens JW, if a jury DOES ignore instructions, or the evidence, and acquits?  Nothing. The accused is free, acquitted, and nothing can change it.
     
    You’re just telling me that they can’t be punished for disobeying instructions (in either direction, whether to acquit or convict).  I already know that.   But the word “must” covers more than things you will be punished for or that will have “consequences.”  
     
    On a bridge by a river, you come upon a wallet.  It’s got the owner’s ID and $1000 in cash.   You ring your lawyer and ask his advice.  He says, you must turn that wallet in.  The owner is clearly identifiable, and it’s both wrong and unlawful to take and spend it.   By your reasoning, there is no “must” on either side.  Nothing will happen to you if you commit the crime, and nobody will do anything to you.   But you don’t really think that…except in this one area of “juridicial pardons,” where unfortunately we get a lot of special pleading by defense attorneys.  You could come up with a much nastier hypothetical involving a war crime that would never be detected in the “fog of war”…think of the advice you’d give the commander, and whether you’d tell him he “can’t” or “mustn’t” commit the war crime, versus telling him, “Well, boss, you really shouldn’t….”
     
    Or, to stick with your example, suppose the jury is not convinced beyond reasonable doubt, but they convict the guy anyway because they think we “need more rape convictions,” or they don’t like the accused’s race, or something of that nature.  (Assume there is enough evidence to get past a 917 so the verdict won’t be overturned on appeal, but the jurors are not really convinced.)   Would you change all the “must acquit” language to “should acquit”?   Because once you change all the “musts” to “shoulds,” what you’ve really told the jury is that they can do what they feel like doing.  But your reasoning…no consequences if they violate their oaths…would turn all the “musts” into “shoulds,” and not just in the one direction you favor.
     
    That the “must convict” language is simply wrong, can be demonstrated by the affirmative defenses of “Entrapment” or “Insanity.”
     
    A clever argument, but it fails.  The judge clearly instructs on what entrapment and insanity mean, and that the panel can’t convict if they’re convinced on these defenses to the right standard.   Go a little further down in Instruction 6-4 to the operative language:

    “On the other hand, if the accused had a delusion of such a nature that (he)(she) was unable to appreciate the nature and quality or wrongfulness of (his)(her) acts, the accused cannot be held criminally responsible for (his)(her) acts…In other words…If you are convinced by clear and convincing evidence that the accused suffered from a severe mental disease or defect and you are also convinced by clear and convincing evidence that (he)(she) was unable to appreciate the quality and wrongfulness of (his)(her) acts, then you must find the accused not guilty only by reason of his lack of mental responsibility…”
     

    The language is quite clear and mandatory…no “shoulds” and “mays” about it.   If we actually had a case where there was something unclear about the interplay between the two instructions, that would be different from this case…but I don’t see that the instructions at issue really conflict with, or are  likely to confuse a panel in connection with, the insanity instruction…once you read the whole thing.

  9. Zachary D Spilman says:

    You make solid arguments, Joseph Wilkinson, except for your starting premise that there’s something wrong with an acquittal despite proof beyond a reasonable doubt. The law won’t encourage that result, but it certainly doesn’t forbid it.

    There is, however, something very wrong with a conviction absent proof beyond a reasonable doubt, and the law absolutely forbids that (going so far as to allow appellate courts to reverse such a conviction, as legally insufficient).

    That’s why proper instructions inform a panel that it should convict but must acquit. 

  10. Joseph Wilkinson says:

    You make solid arguments, Joseph Wilkinson, except for your starting premise that there’s something wrong with an acquittal despite proof beyond a reasonable doubt. The law won’t encourage that result, but it certainly doesn’t forbid it.
     
    The language I quoted in Hardy suggests that it does.   There is no way to enforce that law (or at least that legal duty), but it’s there.  And it’s a good thing that it’s there.
     
    There is a great deal wrong with an acquittal despite proof beyond a reasonable doubt.   Especially in a society like ours, where we are trying to rub along with a large collection of different “tribes” (here used to mean races, religions, political tendencies, or what have you), and having the same laws apply to all of us is a major part of that.   (I bet you know the “rule book” speech from Bridge of Spies, and I hope you admire it, as I do.)   The laws are supposed to apply equally to members of every tribe…and that means everyone who gets tried, if his guilt is proved, gets punished, no matter which tribe the jurymen come from or which tribe the victim is.
     
    If you tell a jury they can acquit despite being convinced beyond reasonable doubt, simply because they want to, they can acquit for the following reasons….
     
    #1, the accused is a member of my tribe, and the victim’s from another tribe.  It’s us versus them.  Acquit.
    #2, I don’t take it that far, but one of “them” got away with a crime against one of “us,” so it’s payback time!  Acquit.
    #3, the accused is popular, and I just don’t like the victim.  Acquit. 
    #4, I just disagree with the law.  Screw the “rule book.”  Acquit.
     
    …in military court, we have other, even worse, motivations…
     
    #5, this is about disobeying orders, and I don’t like those orders.  Acquit.
    #6, this is about disobeying orders, and I don’t like the commander who issued the orders.  Acquit.
    #7, we need military justice to maintain discipline and carry out the war effort…but I personally disagree with this war, so I am not going to help.  Acquit.
     
    Change “must” into “may” and you have explicitly allowed every one of these.  And for what?   Because defense attorneys would like it, and are always trying to get it written into the law?   It runs contrary to the reasons we have these laws.   There is scope enough for clemency later on.
     
    Of course, if you decide that there can be no “musts” to a jury–not your argument, I think–then your “mays” run in both directions, and you can convict men without proof based on the flipsides of the above reasons, plus others you can easily imagine.  

  11. Zachary D Spilman says:

    I’ll not make a defense of jury nullification here, Joseph Wilkinson, except to say that there are innumerable commentaries defending that power.

    The language you quoted from Hardy, however, along with the rest of that decision, absolutely does not prohibit nullification. Hardy merely holds that an accused in not entitled to an instruction on nullification – a sensible result. Significantly, however, in Hardy the prosecution wanted the military judge to give a must-convict instruction but the judge refused (presumably he gave a should-convict instruction). CAAF then deliberately avoided analysis of the propriety of a must-convict instruction. See 46 M.J. at 69 n.5.

  12. stewie says:

    JW, well, yes, it is about disobeying, because sometimes we disobey.
     
    Let’s assume that a commander decided to take a five minute FTR to trial. No other prior history, no other offenses, he was late, the evidence clearly proves it.  The panel asks, are we really going to give this guy a federal conviction for being five minutes late?
     
    No, that’s ridiculous, even though the prosecution has met all the elements and proven the offense BRD.
     
    I mean if you want to defend why that’s wrong and they MUST convict in that scenario, feel free, but I don’t think it would be very logically, emotionally, or common-sense compelling.
     
    It would be real easy to get rid of jury nullification, as a society, as a military, but we don’t…why? Because everyone is secretly a defense attorney? Because we all underneath enjoy doing things contrary to law?

  13. Dew_Process says:

    If a judge – military or civilian – is to retain the appearance of being “fair and impartial” before the members/jurors, it seems that to then under the cloak of a Black Robe tell the fact-finder that they “must” find an accused guilty, is assuming the function of the prosecution. The historic prosecution of William Penn (and others) in the Old Bailey (which has a plaque to that effect), where the jurors were imprisoned after refusing the Judge’s “direction” that they find them guilty of preaching the Quaker beliefs and they secured their release via habeas corpus [Bushel’s Case (1670)], is instructive.
     
    I just did a quick, but not exhaustive check on a few of the various federal Pattern Criminal Jury Instructions. While there is a Circuit split on the “must” versus “should” language, it appears that the “should’s” outweigh the “must’s.”  Some Circuit’s (e.g., the Second) shy away from this totally. For example:
     
    First Circuit:
     

    If, after fair and impartial consideration of all the evidence, you have a reasonable doubt as to [defendant]’s guilt of a particular crime, it is your duty to find [him/her] not guilty of that crime. On the other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt of [defendant]’s guilt of a particular crime, you should find [him/her] guilty of that crime.

     
    Third Circuit:
     

    If, having now heard all the evidence, you are convinced that the government proved each and every element of the offense charged beyond a reasonable doubt, you should return a verdict of guilty for that offense. However, if you have a reasonable doubt about one or more of the elements of the offense charged, then you must return a verdict of not guilty of that offense.

     
    Contra, Tenth Circuit:
     

    If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

     
    Personally, I think the Tenth Circuit’s charge above is wrong as the “real possibility that he is not guilty” language shifts the burden to the defendant to demonstrate that “possibility,” regardless of the “must” instruction.

  14. DCGoneGalt says:

    I’ve seen what had to be nullification in action in (let’s just call them low-evidence) sexual assault cases when add-on charges such as underage drinking or curfew violations were clearly proven BRD.  I am certain the members followed stewie’s line of thought and acquitted because they found it inappropriate (and probably stupid . . . both classifications I happen to agree with) that rational adults preferred/referred those add-on charges to a general court-martial.
     
    And I think that’s a good thing.
     
    I also see nullification as a check on governmental abuse of authority.  For instance, society’s opinions on non-violent drug possession and use crimes have evolved much faster than the laws have evolved.  If “the people” don’t want the laws and the “democracy” isn’t responsive then “the people” can make the laws unenforceable by refusing to convict. 
     
    If JW’s tribal/payback/popular/disagree parade of horribles causes the justice system to become awash in a flood of nullification acquittals then society has broken down to the point where jury nullification is the least of our worries.  I say this fully understanding that there is a possibility that “bad” nullification cases can occur, ex: in the Jim Crow South where an all white white jury would refuse to convict a white murderer of a black victim.  However, there are remedial actions that can be taken to alleviate those concerns (such as was done with that example . . . race-inclusive juries, inability to strike/challenge members based on race, federal civil rights laws, etc.) and there are IMO not the gathering storm portrayed by JW unless one feels that a citizen check on unchecked government prosecutorial power is a gathering storm.  If it is a gathering storm . . . I say “make it rain”.

  15. AFJAG Capt says:

    I think it was Thomas Jefferson that said the jury is the only tool ever devised that will anchor a government to the principles of the Constitution.  The same holds true for the military court-martial panel.  We can conceive of any number of fact sets in which nullification may be appealing (and arguably appropriate).  Stewie points to one.  What about a case analogous to that of Jackie Robinson, where legal (at the time) but morally reprehensible discrimination underlay an otherwise valid order, law, etc?

  16. AFJAG Capt says:

    DP:
    I looked at all the federal pattern instructions for a case, visiting each circuit’s website to see what they had listed.  By my count, the majority have adopted should over must by a vote of 3 (1st; 3d; 7th) to 2 (8th; 10th). 2 circuits (2d; 4th) did not providing pattern instructions.  One was silent (6th). Two used neither must nor should (6th & 9th).  Here’s the long version of it…
    Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 3.02 (2016) (“On the other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt of [defendant]’s guilt of a particular crime, you should find [him/her] guilty of that crime”); Model Criminal Jury Instructions for the Third Circuit § 1.13 (2013) (“If, after hearing all the evidence, you are convinced that the government has proved (name) guilty beyond a reasonable doubt, you should return a verdict of guilty.”); Pattern Criminal Jury Instructions for the Seventh Circuit § 4.01 (2013) (“If you find from your consideration of all the evidence that the government has proved each of these elements beyond a reasonable doubt [as to the charge you are considering], then you should find the defendant guilty [of that charge].”); Cf Pattern Criminal Jury Instructions for the Eighth Circuit § 3.09 (2013) (“If all of [these] [the] elements have been proved beyond a reasonable doubt as to [the defendant] [defendant (name)] [and if it has further been proved beyond a reasonable doubt that [the defendant) [defendant (name)] was not [entrapped] [acting in self defense], [acting in defense of —————] [as defined in Instruction No. ———]]; then you must find [the defendant] [defendant (name)] guilty of the crime charged [under Count ———]; otherwise you must find [the defendant] [defendant (name)] not guilty of this crime [under Count ———].”); Criminal Pattern Jury Instructions for the Tenth Circuit § 1.05 (2015) (“If, based on your consideration of the evidence, you are convinced that the defendant is guilty of the crime charged, you must find him guilty.”) (emphasis added). Additionally, the treatise Modern Federal Jury Instructions-Criminal. § 4.02 applies the should language. (“On the other hand, if after fair and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt of the defendant’s guilt with respect to a particular charge against him, you should find the defendant guilty of that charge.”)
    There were no available pattern or model instructions for the Second and Fourth Circuits, while the Fifth Circuit pattern instructions are silent on the matter. Two other Circuits use neither must nor should. See Pattern Criminal Jury Instructions for the Sixth Circuit § 1.05 (2014) (“If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict.”); Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, § 3.5 (2016) (“On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.”); Eleventh Circuit Pattern Jury Instructions § 2.1 (2010) (“If you are convinced that the Defendant has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so.”
     
     

  17. Advocaat says:

    Fantastic discussion.  I always approached this issue with my knuckles dragging on the ground.  I never got upset when MJs ignored my requests to use “should” (sometimes “may” if I was feeling saucy) instead of “must” convict, starting back in 2001 during my first tour as an AF defender.  I knew I could always remind the panel of their solemn oath to vote according to their consciences in those cases where the govt was clever enough to charge rape along with failure to obey a lawful regulation to refrain from drinking, and that most military members (or very reliably just over 1/3) would feel bound to do what they believed was just.  Why rely on a “legal right” when you can frame an issue in terms of moral obligation or, even better, hypocrisy?

  18. Vulture says:

    DCGG
    You present an interesting argument for nullification based on being a check on govt power.  One of the arguments against nullification is that it presents a freedom of speech issue.  I think that in the Scott Peterson case the jury heard a lingering doubt argument from the DC against the death penalty.  As long as the possibility of any mistake is out there, even on the fringes, anything should be available to the Jury.

  19. DCGoneGalt says:

    Vulture:
    CAAFLOG had a post last fall about an Army article on Nullification that was really interesting.
     
     Jury Nullification
     
    I commented on the post with links to the book Jury Nullification by Clay Conrad that the CATO Institute re-released a few years ago as well as a law review article on the “Judicial Oligarchy” that has an excellent short summary of the history of the subject.
     

     Law Review Article – Nullifying the Jury:  “The Judicial Oligarchy” Declares War on jury Nullification – http://www.supremepumps.com/why/War%20on%20Jury%20Nullification.pdf Book – Jury Nullification: The Evolution of a Doctrinehttp://www.amazon.com/Jury-Nullification-The-Evolution-Doctrine/dp/1939709008 

     
     

  20. Vulture says:

    DCGG.  I remember it.  I miss scholarship Saturday.  **hint**

  21. Zachary D Spilman says:

    I welcome guest posts and reader submissions for Scholarship Saturday. Zack@CAAFlog.com

  22. stewie says:

    I propose for this week:  Fences: Structures or Barriers to our Hearts?

  23. DCGoneGalt says:

    stewie for the win.

  24. Zeke Kennen says:

    If court-martial panels were not supposed to have the power to nullify, then Congress would not have given them the ability to render general verdicts, in secret, under Art 51.  If Congress had wanted to remove nullification from the toolkit of court-martial panels, then Art 51 would have instead required the members panel to return only a special verdict on each element of the offense, and the trial judge would then have been required to enter a general verdict consistent with those special findings. Congress knew how to set such a thing up – just look at Fed. R. Civ. P. 49.  
     
    The fact of the matter is that one of the fundamental motives behind Congress’ creation of the UCMJ in 1950 was that the public did not trust military commanders to do justice.  The court-martial panel system, vested with nullification power, is a reflection of that legislative purpose and intent.  Requiring the government to convince five members it hand-picked, and who are not required to be unanimous, might not be as sobering to prosecutorial zeal as making the government unanimously convince 12 citizens pulled from everyday life.  But, giving those five members nullification power gives the court-martial system a few more teeth to bite the government with than it otherwise would have.  With so many other rights of the accused being degraded in favor of government prosecution efforts, the court-martial system needs all the teeth it can get these days.  

  25. Bill Cassara says:

    Years ago I represented a soldier accused of abusing a detainee, drinking in theater and smoking hash.  The evidence of the latter two were pretty overwhelming, and we did not contest them (didn’t even discuss them in closing.)  The panel still acquitted him. Why?  Probably because they didn’t think a soldier should have a conviction on his record for it, but who knows?  While I think it is entirely their call, I don’t anticipate CAAF ruling for the defense. Think Talkington.

  26. k fischer says:

    Zeke,
     

    With so many other rights of the accused being degraded in favor of government prosecution efforts, the court-martial system needs all the teeth it can get these days.  

     
    Piggybacking off that notion, the Court-martial system definitely looks like it might be from Alabama.  Of course, I think a better analogy would be like meth is to the human body, so are McCaskill and Gillibrand to the UCMJ.
     
     
     

  27. stewie says:

    Bill, I saw something similar, I had a client accused of indecent acts (group sex), along with a bunch of rape/sex assault charges.  In my closing, I made sure the panel knew that if he did that, so did the alleged victim, and so did the other folks now testifying for the government. Obviously the panel would have convicted if they believed he did the assaults, but since they didn’t, they clearly did not want to convict him of a group sex encounter at a court-martial, so they acquitted him, even though he was clearly guilty, by his own statement, and multiple witnesses.