THE ADVANTAGE OF NONUNANIMOUS VERDICTS IN THE MILITARY

Author: Drew Jackson, Associate Editor

In 2016, Evangelisto Ramos was convicted of second degree murder and sentenced to life imprisonment without parole by a 10-2 nonunanimous jury verdict.[1] At the time if Mr. Ramos had been tried in almost any other state he would have received a mistrial.[2] His appeal made it all the way to the Supreme Court which held that the Sixth Amendment right to a jury trial was intended to require a unanimous verdict to convict.[3] The Court has long held unanimity is required in federal criminal courts,[4] and the Court reasoned that the implied right to unanimous verdicts applied to the States equally under the Fourteenth Amendment.[5] In 2020, Ramos brought unanimous verdicts to both Louisiana and Oregon which were the last two states that did not already require unanimity to convict.[6] Yet this did not put an end to nonunanimous criminal convictions debate.[7]

Military courts can convict service members of crimes at a court-martial by a vote of three-fourths of the panel.[8] A court martial panel is functionally the same as a jury deciding the findings of guilt and sentence the accused,[9] unless the accused has chosen a court-martial by judge alone.[10] A court-martial panel consists of other service members superior in rank to the accused that have been detailed to the court-martial by the convening authority.[11] The number of panel members depends on the jurisdiction of the court-martial.[12] Nonunanimous panel verdicts have historically survived Sixth Amendment challenges because the Supreme Court has held that the right to a trial by jury does not constitutionally apply to service members prosecuted in a court-martial.[13]

On January 3, 2022, a military judge granted a defendant’s motion to require a unanimous panel verdict in order to convict relying on an equal protection claim and Ramos.[14] The United States Army Court of Criminal Appeals (ACCA) took up this issue on June 9, 2022, after petition from the government and issued a writ of prohibition.[15] The ACCA disagreed that the Fifth Amendment’s guarantee for equal protection required unanimous verdicts in courts-martial convictions.[16] The ACCA judges reasoned that military defendants and civilian criminal defendants were not similarly situated for equal protection purposes,[17] and even if they were, Congress has a rational basis to treat military defendants differently.[18]

Not requiring unanimous verdicts in court-martial trials may on its face seem unjust, but it may actually be in the best interest of an accused service member. An acquittal is reached  in a court-martial if the three-fourths vote to convict is not met.[19] Therefore, an accused service member would only need to raise reasonable doubt in the minds of two or three panel members, depending on the jurisdiction of the court-martial, to be found not guilty and acquitted.[20] This is in contrast to civilian criminal court where a unanimous vote is usually required for an acquittal and a nonunanimous vote would result in a “hung jury,” allowing retrial.[21] Another benefit is that the three-fourths to convict rule provides service members with finality after their court-martial, where there is no risk of a hung panel that would give the government an opportunity to re-try the case.[22]

If military courts were to adopt unanimity for courts-martial convictions it would not imply that a nonunanimous verdict would result in an automatic acquittal.[23] It would likely introduce the possibility of hung panels that would leave unresolved charges for service members that could be retried.[24] Additionally, requiring unanimous panels at courts-martial would require polling the panel members which is currently prohibited by the Rules for Courts-martial—a  rule that protects the integrity of the secret ballot voting.[25]

There is no easy way to apply a unanimous panel rule that would not undermine current rules meant to protect defendants. The risk-to-reward ratio under the current nonunanimous rule for courts-martial provides more benefit and better odds for an acquittal than a rule for a unanimous verdict. Although it may not sound pleasing to a service member to be convicted with less than a unanimous panel, the odds are in the service member’s favor.

[1] State v. Ramos, 231 So. 3d 44, 46 (La. Ct. App. 2017), rev’d, 140 S. Ct. 1390 (2020).

[2] Ramos v. Louisiana, 140 S. Ct. 1390, 1394 (2020).

[3] Id. at 1396-97 (2020).

[4] Id. at 1396-97 (quoting Thompson v. Utah, 170 U.S. 343, 351 (1898)).

[5] Id. at 1397 (incorporating the federal right to a unanimous verdict to the states under the Fourteenth Amendment).

[6] Id. at 1394 (Louisiana and Oregon had previously relied on Apodaca v. Oregon, 406 U.S. 404 (1972)).

[7] See United States v. Pritchard, ARMY 20220001, 2022 CCA LEXIS 349 (A. Ct. Crim. App. June 9, 2022).

[8] 10 U.S.C. § 852 (2022) (Art. 52 of the Uniform Code of Military Justice (UCMJ) outlining the requirements for convictions and sentencing).

[9] 10 U.S.C. § 851 (2022) (Art. 51 of the UCMJ outlining the rules for panel voting).

[10] 10 U.S.C. § 816 (2022) (Art. 16 of the UCMJ outlining the different court-martial forums).

[11] 10 U.S.C. § 825(e) (2022) (Art. 25 of the UCMJ outlining who may serve on a courts-martial).

[12] A court-martial will consist of 12 members in a general court-martial capital case, at least six but not more than eight members in a general court-martial noncapital case, and four members in a special court-martial. 10 U.S.C. § 829 (2022) (Art. 29 of the UCMJ outlining the impaneling of members).

[13] United States v. Pritchard, ARMY 20220001, 2022 CCA LEXIS 349, at *7 (citing Ex parte Quirin, 317 U.S. 1, 39 (1942); United States v. Begani, 81 M.J. 273, 280 n.2 (C.A.A.F. 2021); United States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012); United States v. Weisen, 57 M.J. 48, 50 (C.A.A.F. 2002); United States v. Kemp, 46 C.M.R. 152, 154 (U.S. C.M.A. 1973)).

[14] Id. at *2-3 (A. Ct. Crim. App. June 9, 2022).

[15] Id. at *7.

[16] Id.

[17] Id. at *10.

[18] Id. at *14.

[19] R.C.M. 921(c)(3).

[20] See R.C.M. 921(c)(2) discussion.

[21] Jason D. Reichelt, Standing Alone: Conformity, Coercion, and the Protection of the Holdout Juror, 40 U. Mich. J.L. Reform 569, 570 (2007).

[22] See Id.

[23] United States v. Pritchard, ARMY 20220001, 2022 CCA LEXIS 349, at *13 n.7 (A. Ct. Crim. App. June 9, 2022)

[24] Id. at *13.

[25] An environment where some panel members are superior in rank to other members of the panel. Id. at *15-16 (Ewing, J. concurring) (first quoting United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986); and then citing R.C.M. 921(c) and 922(e)).