U.S. v. Anderson, 83 M.J. 291

First Principles: Constitutional Matters: Generally

1. courts-martial accuseds do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection
2. the Sixth Amendment right to a jury trial does not apply to courts-martial
3. in the absence of a Sixth Amendment right to a jury trial in the military justice system, appellant had no Sixth Amendment right to a unanimous verdict in his court-martial

First Principles: Constitutional Matters: Due Process

1. courts-martial defendants do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection
2. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel
3. to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress
4. the factors militating in favor of the right to a unanimous verdict are not so weighty as to overcome the balance struck by Congress in Article 52, UCMJ; first, historical evidence establishes that for more than two centuries, courts-martial verdicts have not been subject to a unanimity requirement; second, several unique safeguards in the military justice system address appellant’s concerns about the impartiality and fairness of courts-martial without unanimous verdicts, e.g., Article 51(a), UCMJ, requires voting by secret ballots, which protects junior panel members from the influence of more senior members and appellants in the military justice system are also entitled to factual sufficiency review on appeal, ensuring panel verdicts are subject to oversight
5. preserving impartiality and fairness does not require identical safeguards in the military and civilian justice systems
6. a right is made applicable to the States by the Fourteenth Amendment; the right is not, however, converted into a procedural due process right by incorporation
7. the Supreme Court’s incorporation of the right to a unanimous verdict to the states in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), made that right applicable to the states; however, it did not convert unanimous verdicts into a procedural due process right
8. nonunanimous verdicts do not run afoul of the Due Process Clause’s requirement that the government prove the defendant’s guilt beyond a reasonable doubt; the reasonable doubt standard refers to reasonable doubt in the mind of the individual juror, not in the minds of a group of individual jurors; if reasonable doubt were evaluated based on the group of jurors, there could be no hung juries in the civilian system; one juror with reasonable doubt would require an acquittal, not a hung jury

First Principles: Constitutional Matters: Equal Protection

1. courts-martial defendants do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection
2. the Equal Protection Clause of the Fourteenth Amendment prohibits denying to any person the equal protection of the laws; the ‘right to equal protection is part of due process under the Fifth Amendment, and so it applies to courts-martial, just as it does to civilian juries; equal protection does not prohibit all classifications; indeed most laws differentiate in some fashion between classes of persons
3. the threshold question in equal protection analysis is whether the groups treated differently by the law are similarly situated; distinctions between similarly situated groups must satisfy the rational basis test unless the distinction implicates either a suspect class or a fundamental right, in which case strict scrutiny applies
4. military and civilian defendants are not similarly situated for equal protection purposes; event though the military justice system’s essential character is judicial and the procedural protections afforded to military defendants are virtually the same as those provided to civilian criminal defendants, to the extent there are similarities between the two systems, it is because Congress, in its discretion, struck a balance between the interests of justice and the distinct purposes of the military, not because accused service members and civilians are alike before the law
5. two groups are similarly situated if they are ‘in all relevant respects alike
6. the differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise; that primary business does not disappear when a servicemember is charged with a crime, and it prevents servicemember and civilian defendants from being in all relevant respects alike; the three principal differences between the systems still remain true today: servicemembers facing courts-martial still have no constitutional right to: (1) a trial by jury; (2) before an independent Article III judge; and (3) after an indictment by a grand jury; the similarities in the two criminal systems do not render servicemember and civilian defendants similarly situated
7. under the rational basis test in an equal protection analysis of Article 52, UCMJ, an appellate court must presume that Article 52, UCMJ, is constitutional and the burden falls on appellant to rebut every conceivable basis which might support it
8. even if appellant were similarly situated to a civilian criminal defendant, he has no fundamental right to a unanimous verdict in the military justice system where he failed to rebut the rational basis for the nonunanimous provision of Article 52, UCMJ, that it serves the legitimate government purposes of promoting efficiency in the military justice system and of guarding against unlawful command influence in the deliberation room; these justifications for nonunanimous verdicts in courts-martial are rationally related to legitimate state interests and do not violate appellant’s Fifth Amendment right to equal protection

First Principles: Constitutional Matters: Right to a Jury Trial

1. courts-martial defendants do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection
2. the Sixth Amendment right to a jury trial does not apply to courts-martial
3. even if the Supreme Court’s statements in past cases exempting the military justice system from the Sixth Amendment’s right to a jury trial technically qualify as nonbinding dicta, the Supreme Court has never treated them as such; and because the Supreme Court has repeatedly relied on the principle that courts-martial are fundamentally different from civilian trials due to that exemption, the CAAF will not ignore over a century of consistent guidance from the Supreme Court about the applicability of the Sixth Amendment to military trials
4. although the Sixth Amendment right to a jury trial has never applied in the military justice system, an accused servicemember’s right to be tried by impartial panel members has long been a cornerstone of the military justice system
5. an “impartial” jury is not synonymous with a “unanimous” jury; impartiality in the military justice system has never been understood to require unanimous verdicts
6. in the absence of a Sixth Amendment right to a jury trial in the military justice system, appellant had no Sixth Amendment right to a unanimous verdict in his court-martial
7. the factors militating in favor of the right to a unanimous verdict are not so weighty as to overcome the balance struck by Congress in Article 52, UCMJ; first, historical evidence establishes that for more than two centuries, courts-martial verdicts have not been subject to a unanimity requirement; second, several unique safeguards in the military justice system address appellant’s concerns about the impartiality and fairness of courts-martial without unanimous verdicts, e.g., Article 51(a), UCMJ, requires voting by secret ballots, which protects junior panel members from the influence of more senior members and appellants in the military justice system are also entitled to factual sufficiency review on appeal, ensuring panel verdicts are subject to oversight
8. even if appellant were similarly situated to a civilian criminal defendant, he has no fundamental right to a unanimous verdict in the military justice system where he failed to rebut the rational basis for the nonunanimous provision of Article 52, UCMJ, that it serves the legitimate government purposes of promoting efficiency in the military justice system and of guarding against unlawful command influence in the deliberation room; these justifications for nonunanimous verdicts in courts-martial are rationally related to legitimate state interests and do not violate appellant’s Fifth Amendment right to equal protection

Trial Stages: Merits: Trial Procedures › Generally

1. courts-martial defendants do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection
2. Article 52(a)(3) of the UCMJ expressly authorizes a court-martial to convict a servicemember subject to a general or special court-martial of a criminal offense by the concurrence of at least three-fourths of the members present when the vote is taken
3. although the Sixth Amendment right to a jury trial has never applied in the military justice system, an accused servicemember’s right to be tried by impartial panel members has long been a cornerstone of the military justice system
4. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel
5. an “impartial” jury is not synonymous with a “unanimous” jury; impartiality in the military justice system has never been understood to require unanimous verdicts
6. in the absence of a Sixth Amendment right to a jury trial in the military justice system, appellant had no Sixth Amendment right to a unanimous verdict in his court-martial
7. the factors militating in favor of the right to a unanimous verdict are not so weighty as to overcome the balance struck by Congress in Article 52, UCMJ; first, historical evidence establishes that for more than two centuries, courts-martial verdicts have not been subject to a unanimity requirement; second, several unique safeguards in the military justice system address appellant’s concerns about the impartiality and fairness of courts-martial without unanimous verdicts, e.g., Article 51(a), UCMJ, requires voting by secret ballots, which protects junior panel members from the influence of more senior members and appellants in the military justice system are also entitled to factual sufficiency review on appeal, ensuring panel verdicts are subject to oversight

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress
2. when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee
3. the threshold question in equal protection analysis is whether the groups treated differently by the law are similarly situated; distinctions between similarly situated groups must satisfy the rational basis test unless the distinction implicates either a suspect class or a fundamental right, in which case strict scrutiny applies
4. under the rational basis test in an equal protection analysis of Article 52, UCMJ, an appellate court must presume that Article 52, UCMJ, is constitutional and the burden falls on appellant to rebut every conceivable basis which might support it

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee
2. Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee
2. Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military