When I wrote the first draft of this article, I was listening to the second day of the Senate Confirmation Hearing for Judge Amy Coney Barrett. The backand-forth exchanges (sniping?) between her and the senators mostly fell along the expected lines of her thoughts on abortion, race relations, women’s rights and the Affordable Care Act. As she deflected the hypotheticals or assiduously avoided answering what she would do in any particular case by citing to some procedural rules, I keep drifting in my thoughts back to a recent United States Supreme Court case that I did not think would get any attention—and it didn’t. Not that it would have mattered. If any of the senators had asked her about it, she probably wouldn’t have answered anyway.
Earlier this year, the Supreme Court decided a case that surprised many folks outside those practicing criminal law in Louisiana: Ramos v. Louisiana, 590 U.S. __ (2020), which brought to light an issue that 48 states had already resolved (or never had a problem with in the first place): unanimous verdicts in criminal cases. In short, all states but Oregon and Louisiana required unanimous verdicts in felony cases prior to this ruling.
Justice Gorsuch, writing the opinion of the court, could not have been clearer: Wherever we might look to determine what the term “trial by an impartial jury” meant at the time of the Sixth Amendment’s adoption—whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.
The Supreme Court has spoken: Louisiana and Oregon have to join the rest of the flock, ensuring that when we convict someone in the United States, no reasonable doubt remains in the mind of any juror as to their guilt. The Sixth Amendment requires every citizen have a right to a unanimous jury verdict. So this issue is settled, right? No one can be convicted in the United States for a felony crime if they chose to be tried by a jury unless that jury returns a unanimous verdict of guilt. Simple. Right? Not exactly.
Ramos still left a major disconnect in some of our courts, though they received no mention in the Supreme Court’s decision. There is one place where Americans accused of serious crimes can still be deprived of their liberty without a unanimous vote. Actually—scratch that—not one place, but in almost 800 places in more than 70 countries and territories, potentially affecting 1.3 million people.
Those people have one thing in common. They have all volunteered to risk their lives if needed to protect and defend our country and our Constitution. They put on a uniform, live where they are told, leave their families for months at a time, and, apparently, give up their constitutional right to a unanimous verdict if accused of a serious crime. Military courts, established by Article III of the Constitution, do not require a unanimous verdict. Even after Justice Gorsuch’s clear direction, the Department of Defense was quick to shout: “That doesn’t apply to us!” But why? I submit that it does and should apply.
It is hard to read Ramos and understand how the military, bound by the same Constitution (and established pursuant to Article I, Section 8, Clause 12 of the Constitution), has continued to allow non-unanimous verdicts, especially when you read the end of the Ramos Court’s opinion: “On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment.”
How are the convictions of soldiers, sailors, marines, and airmen constitutional under the weight of this Supreme Court decision? It doesn’t seem as if they are. A future Supreme Court case could dramatically change the military court-martial process. What should happen to the convictions between the decision in Ramos and future Supreme Court case would be much, much trickier to figure out.
Courts-martial (that’s the plural, like attorneys general—there’s a West Wing quote here, I think it was Sam, maybe Josh—somebody mentioned this) have been around longer than any other system of justice in our country. In today’s military, they are governed by the Manual for Courts-Martial (MCM), which is periodically updated by Congress through Military Justice Acts. The current iteration of the MCM was significantly updated in 2019. The rules of evidence follow very closely with the Federal Rules of Evidence with very few exceptions. The crimes are based on violations of the Uniform Code of Military Justice (UCMJ) first established by Congress in 1950. Most of the things that happen in state criminal courts or federal criminal courts happen in a court-martial—someone accused of a crime is arraigned, he or she chooses whether to be tried by a judge alone or by a jury, there are opening statements, evidence presented, closing arguments, and instructions— but there are significant differences too. So first, the military calls its juries “court members.” (Maybe this is how they will eventually argue before the Supreme Court that the precedent does not apply to “members” because they are not “jurors,” all I have to say to that is “C’mon man!”—but whoever has the honor of arguing this to our nation’s highest court on behalf of a servicemember unconstitutionally convicted should come up with something slightly better.) The court members by default are all officers, but upon request of the accused (the military’s term for defendant), if the accused is enlisted, at least one-third of the court members will be enlisted and outrank the accused. When the court members are sent back to deliberate, after closing arguments from counsel and instructions from the military judge, they are told that they begin with a full and free discussion. When they are satisfied with their discussion and chose to vote they do so by secret written ballot. The votes are then counted and their decision made. Before 2019, the rule for all but capital cases was that the prosecution only needed two-thirds of the members to write “guilty” on their ballots to obtain a conviction.
Wait—I almost forgot to mention the numbers. Ah, the numbers! A General Court-Martial (GCM), the type of court-martial designed to try the most serious of crimes, must consist of at least five members. There was no upper limit before the 2019 changes enacted by Congress. In my practice, I have had many cases with 12 members, but as a defense counsel I was always shooting for an eight-member panel. Those of us that have a hard time memorizing numbers kept a handy dandy chart we referred to as the numbers game (see the picture of the first page of my trial notebook).
After Congress’s 2019 changes, the prosecution now needs three-quarters of the members to vote guilty to win a conviction. They also messed up the fun of the numbers game by creating a very intricate way of getting to eight members in every GCM involving either witchcraft or a random-number generator (not sure which, I understand neither) after all challenges for cause and peremptory challenges (each side only gets one) are exhausted. Certainly a nod to a step in the right direction, but certainly not unanimous.
Thankfully, unlike in Louisiana and Oregon, there was a non-racist reason for non-unanimous verdicts in the military. The military is a fighting force. The number-one job is to fight and win wars. When our country was young and frequently at war, it became apparent that there was a need for war commanders to be able to maintain “good order and discipline” and that included being able to try its members for crimes they commit while in combat or overseas. They especially needed control over military- centric crimes like desertion, AWOL (absence without leave), fraternization (relationships with folks you aren’t supposed to be having relationships with), disobeying orders, and the like. When commanders needed to try their servicemembers during our grandfathers’ era, it was perfectly sensible for Congress to balance the rights of the accused with the importance of the mission—you know, fighting and winning wars. Eventually, they stopped guessing at how to do things and the first Manual for Courts-Martial (MCM) was written with procedures and rules on how to conduct courts-martial. Wartime courts-martial could not afford to have officers distracted from their war-fighting obligations and duties for too long; they were trying to avoid the potential for days-long deliberations sometimes needed to reach unanimous verdicts, and the logistical nightmare that a mistrial might present. The first rules that established that only two-thirds of the members needed to vote guilty in order to convict was intended fit the needs at the time—expediency. Well, times change and needs change. It is hard to argue now that we can’t remove the servicemember alleged to have committed a crime from the war and hold the trial at an established military installation, essentially “home base” for the unit. We don’t have an urgent need to pull judges, prosecutors, defense counsel, witnesses and court-members off an active battlefield to decide a court-martial anymore—we can throw them on the next rotator home. Now, the alleged violations of the Uniform Code of Military Justice are tried at a military installation far from the fight. This was most recently seen in the extremely public courts-martial of both Navy Seal Chief Edward Gallagher and Army Sergeant Bowe Bergdahl. Both of them were accused of war crimes and both tried much later in San Diego, California and Fort Bragg, North Carolina respectively.
As a result of Ramos, there is no longer any state in the country that can secure a conviction of a serious crime without a unanimous verdict. But if you find yourself wearing a military uniform, having sworn to uphold the Constitution against all enemies foreign and domestic, having agreed to put your life on the line for your country—doubt left in the mind of a juror or two is OK. Standing in that uniform, sweating next to your defense counsel after the judge has asked you to rise and face the court members, you will never know whether you were convicted by a unanimous verdict or not. Part of the oath that military members take in front of the military judge at a court-martial before voir dire begins includes swearing not to disclose their vote or the vote of any other member unless required to do so in the due course of law. Could have been that only six of them thought you were guilty, that two thought the prosecution had not met their burden of proving your guilt beyond a reasonable doubt.
If any other military practitioners are reading this (or any other practitioners who have clients with a connection to service members), the question arises: What should you do? Object. And don’t just object to preserve the record, strenuously object (channel Demi Moore). Give the court a history lesson on why we have unanimous verdicts, and quote from Ramos, there’s some good stuff in there. In your objection, challenge the military judge to opine on why a United States Supreme Court decision is not required precedent in a military court martial. Literally ask the judge whether or not military courts are bound by United States Supreme Court decisions. You’re going to lose the objection, but don’t stop there. If your case does end in a conviction, ask the military judge to poll the members. You’ll lose again. There is no process in the military for polling the members, in fact Rules for Courts-Martial 922 prohibits it. Explain why polling it is so crucial, how the military judge should exercise her power to allow you this information, why your client deserves this information for his appeals. You’ll still lose, but your chances on appeal will be so much stronger for your efforts.
If you are not a defense counsel practicing in military court—please write your representatives, this needs to change. We shouldn’t lose our constitutional rights because we laced up some combat boots, buttoned our camo, and swore to defend yours.
Disclaimer: This reprint is courtesy of American Law Institute Continuing Legal Education
Antoinette “Toni” Quinn O’Neill is a Partner with Parlatore Law Group and a highly sought-after attorney focusing her practice on criminal defense and military law. With a passion for the courtroom, she has represented a myriad of clients, from general officers to newly enlisted recruits, and has litigated over 120 felony and misdemeanor criminal trials to verdict or dismissal as a defense attorney with an extraordinarily high acquittal rate. Having successfully litigated countless trial motions concerning search and seizure, discovery issues, and testimonial hearsay, she is experienced in handling a full spectrum of constitutional issues. Additionally, she recognizes the importance of defending her clients not only in the courtroom, but in the court of public opinion as well, and is experienced in professionally handling media inquiries in high profile cases. Prior to joining Parlatore Law Group, Ms. O’Neill has spent well over a decade assisting veterans and their families, both in the Air Force, as well as in private practice. She has represented clients at court-martial, non-judicial punishment, adverse administrative actions, investigative hearings, at boards of correction and with military pay issues. As a retired Air Force JAG with four consecutive tours as a litigator, Ms. O’Neill has a wealth of experience handling military justice cases. She is authorized to practice worldwide on military matters.