The Supreme Court opened its new session last week by hearing argument in the case of Ramos v. Louisiana (oyez), which presents the question of whether the Due Process Clause of the Fourteenth Amendment requires a State jury to be unanimous to convict.

The Justices’ tenor from the bench suggested that they are inclined to hold that criminal verdicts in America must be unanimous. Indeed, the mood of the Justices was perhaps best illustrated by Justice Kavanaugh’s prodding of government counsel during their rebuttal argument:

It seems to me there are two practical arguments for overruling Apodaca[,] [which permits non-unanimous criminal verdicts in State jurisdictions (oyez)]. One is, as Justice Gorsuch says, there are defendants who have been convicted and sentenced to life, 10/2 or 11/1, who otherwise would not have been convicted. So that seems like a serious issue for us to think about in terms of overruling.

And, the second is that the rule in question here is rooted in a — in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s. [. . .]

So do either of those two things — or I guess I should say why aren’t those two things enough to overrule[?] [. . .] [W]hy aren’t those two things enough, again, unfairness to defendants and rooted in racism?

While it may come to pass that the Supreme Court’s decision in Ramos will banish nonunanimous verdicts from American courtrooms, the practice will remain in one jurisdiction – the military. (That is, except for the most serious cases. Even in the military, Articles 25a and 52 of the UCMJ require the unanimous concurrence of twelve members to convict a person of a capital offense. It seems, when it really matters, even military law recognizes that unanimous verdicts are more reliable.)

Whatever the Supreme Court may say in Ramos will be irrelevant to the military jurisdiction because Ramos will speak only to the Sixth Amendment’s guarantee of trial by jury. The Supreme Court has long held that, although the Constitution may not say it, the Founders never meant for the Sixth Amendment to apply to military trials:

[“Cases arising in the land or naval forces”] are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth.

Ex parte Quirin, 317 US 1, 40 (1942) (oyez)

Therefore, whatever standards might apply to “juries” under the Sixth Amendment is of no consequence to a court-martial. A court-martial has no jury.

Given that the Sixth Amendment doesn’t apply to military trials, it is tempting to wonder whether an argument could be made in favor of unanimity under the Fifth Amendment’s due process clause. After all, the method by which a decision in Ramos could impose a requirement of unanimity on the States is via the Constitution’s other due process clause – the one under the Fourteenth Amendment.

But, that argument – that Sixth Amendment jury standards can be shoehorned into military practice via the Fifth Amendment’s due process clause – has been flatly rejected by military courts. A recent example can be found in the Air Force Court’s unpublished opinion in United States v. Spear, ACM 38537, at *5 (A.F. Ct. Crim. App. 2015) (internal quotation marks and citations omitted):

Judicial deference is at its apogee when an appellant is challenging the authority of Congress to govern military affairs. It is the appellant’s heavy burden to demonstrate that Congress’ determinations about panel size and unanimity should not be followed. He must show the factors weighing in favor of his interest are so “extraordinarily weighty” that they overcome the balance struck by Congress in making these determinations.

* * *

[Appellant tries to] recast Ballew [v. Georgia, 435 U.S. 223 (1978) (oyez)] as a due process case that would apply directly to courts-martial as a preexisting constitutional requirement, [but], in fact, there is no prevailing Fifth Amendment standard on this issue with which to require military conformity.

(Disclosure: I represented the appellant on appeal in Spear.)

That sort of precedent ensures that, whatever the Supreme Court may say in Ramos, a military person is not due any more process under the Fifth Amendment than Congress has chosen to give. A military accused is not afforded a jury’s protection, and Ramos won’t change that.

But the accused is not the only party that loses something by the lack of a jury in courts-martial. The government’s convictions in trials by court-martial lack the benefit of a jury’s legitimacy. See Professor Shari Diamond, Podcast—Jury Process: How Juries Bring Legitimacy to Legal Proceedings, Pritzker School of Law, Northwestern University (Jan 16, 2019).

8 Responses to “Scholarship Saturday: A coming requirement for verdict unanimity in America, except in her military”

  1. Bill Cassara says:

    Any time Congress takes another step towards stripping military members of another right, I respond with “Fine. Give me a randomly selected panel and require a unanimous verdict.”

  2. Shawn says:

    In my layman’s view, a non-unanimous vote of guilty is only one (arguably small) difference between civilian and military courts.  Military jurors are not chosen randomly, for example; and they may not abstain; and they vote anonymously; and they cannot be a hung jury; and they receive more detailed instructions.  Adopting only one feature of a Tesla into a Corvette will not improve the latter, regardless of which feature you pick, because even while serving the same purpose, the two cars differ in so many ways.  It might make sense to allow an accused their choice of venues.  F Lee Bailey was said to prefer defending in a military court.  Some would argue it is the civilian juries, not military juries, that ought to be changed.

  3. Vulture says:

    I once made the same statement about F. Lee Bailey here but had to back it up because I couldn’t find the quote.  I think that what he said was that if he had a guilty client he would want to defend them in a civilian system.  And innocent client, in a military system.  This all as a result of the Article 32, which has been gutted in my opinion.
    You may want to check out a book called “Beyond Shock and Awe, Warfare in the 21st Century.”  I think it gives a full account of the statements of F. Lee Bailey in a sub-chapter on MJ.  I think that is where I read it.

  4. Shawn says:

    Vulture, thank you.  I will surely check it out.  Article 32, even if gutted still the Brady Rule on steroids, is another huge difference that I would have mentioned if I knew nearly as much about this as you JAGs do.  My enlisted man’s approach to military justice is, “If it ain’t broke, don’t fix it.”  (Bert Lance — known as Jimmy Carter’s broken lance — said that first, in print at least.)  PS: Kudos to Zeke for another spot on Scholarship Sat.

  5. Vulture says:

    Mmm.  Engineer, not JAG.  You started talking about Tesla’s and high performance vehicles and I got aroused.

  6. stewie says:

    Shawn, yeah no. Article 32s are borderline meaningless. They are even worse than PC hearings, because at least PC hearings in the civilian world involve a judge or magistrate, and only in sex assault cases do we necessarily have the equivalent. They are not, in fact, the Brady Rule on steroids…particularly when the alleged victim can refuse to testify AND get the entire hearing recorded.
    They used to be a Ferrari/Tesla and Space Shuttle all in one, and if we still had them, I’d stick by my belief that the military justice system was preferable with all its flaws to the civilian one. Unfortunately, the gutting of that pretty key proceeding heightens the other flaws. It’s tough to understand why we don’t just do unanimous verdicts except the fear of the hung jury, but there’s an easy answer…you make the requirements for a jury to be hung extremely high (perhaps you can require a unanimous agreement by the panel that a verdict cannot be reached combined with a minimum requirement of deliberation time), AND if a jury is hung, then it’s an acquittal. Boom, no mistrials via hung jury. I suspect the fear is greater than the reality would be anyways.

  7. Nathan Freeburg says:

    What Bill said…and Stewie.

  8. Charlie Gittins says:

    F Lee Bailey was said to prefer defending in a military court. 
    F. Lee Bailey made that statement back when the Article 32 meant something.  He was a firm believer in the 32 and used it in Okinawa to get charges dismissed in the 70s.  The 32 now is simply a speed bump to a GCM.  Those changes were part of the reason I stopped doing military trials.   

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