Just Enough to Overturn a Veto: Finding Guilt in a Military Court

The jury box in the Pershing County, Nevada, C...

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If you don’t like this post, blame Scott Greenfield. Yep, its not my fault.

Scott writes the inimitable Simple Justice blog and is a Criminal Defense Lawyer in New York City. If his blog is not on your morning reading queue, it should be. He comments regularly on the state of the courts, criminal law, and advocacy. His perspective on the civilian criminal justice system often throws my thoughts on the military justice system into sharp relief. This is one of those times.

A few days ago, he wrote a post entitled “In Oregon, Three Out of Four Ain’t Bad” which addressed a newly-kindled discussion in legal circles surrounding non-unanimous juries. This piqued my interest since, in the military (per the Uniform Code of Military Justice (UCMJ)), a felony conviction can be awarded by a 2/3 vote from a 5-person (minimum) jury.

In Oregon and Louisiana, a 10-2 vote in favor of conviction is sufficient. The debate began with the announcement from Eugene Volokh, a Professor of Law at UCLA, of his submission of a Petition for a Writ of Certiorari (asking the US Supreme Court to hear a case) in the matter of Herrera v. Oregon.

On his blog, Professor Volokh summarizes his position as follows:

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

His submission to the Supreme Court is available, and I’d encourage you to read it, if you have the time. Yes, it is academic, but it is also a great analysis of the 6th Amendment, the 14th Amendment, and the role of the Supreme Court in properly interpreting/applying laws.

Scott focuses on the problem from the perspective of a trial lawyer:

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict.  Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea.  It may be my bias, but it strikes me as barbaric.

While the number of jurors, the gang of twelve, seems to possess less magic than we give it (Why not 10? Why not 15? Why 12?), that however many jurors we seat must reach a unanimous verdict seems beyond question.  Yet it’s apparently a very real question for some, including Alonso Herrera.  The simpler solution would be for Oregon legislators to put an end to this anomaly by requiring, as a matter of state law, that verdicts be unanimous.  But as they haven’t done so, it’s certainly sound that the Supremes put an end to the bastardized decision of Apodaca and hold that the 6th Amendment be fully incorporated, and that the right to a jury trial includes the right to a unanimous verdict.

His opinion is one shared by many, and with good reason. When you consider the impacts of a felony conviction, the loss of liberty, and the loss of a good name, reasonableness would seem to demand the utmost care and a high standard.

Application within the Military

Scott expresses disgust that a system of criminal law discounts the opinion of up to 1/4 of a jury. Well, I hate to be the bearer of bad news, but we actually have one that potentially discounts 1/3 of a jury. It is our military justice system.

Before I go further, let me say that I am not condemning the UCMJ. The purpose of my post is to highlight the differences as they apply to jury composition and voting. As you will see, there are tradeoffs. Also, the rules are different in death penalty cases. I will not discuss those, as they are an extraordinarily small niche within the UCMJ.

The best way to show the difference is to give you a hypothetical case. Here, we will use 18-year-old Private Smith, a young soldier recently out of basic training. Finally, he is his own man, away from his parents and earning money. Like many kids his age, he likes to party on the weekends and search for company from members of the opposite sex.

He meets a young lady at a club, takes her back to his place, they drink alcohol and have sexual intercourse.

Two days later, the young lady reports that Smith sexually assaulted her while she was too drunk to understand. He is questioned by the Army Criminal Investigation Division (CID) where he confesses that he drank alcohol, gave her alcohol, that she appeared really drunk to him, and that they had sex. In his written confession, he admits that her level of intoxication appeared to be a 9 out of 10.

He is charged with Aggravated Sexual Assault and Possessing/Consuming Alcohol while Underage.

The charges move forward to a General Court-Martial where he faces more than 30 years in prison. The jury (called a “panel” in the military) is comprised of 9 senior officers and sergeants from the same military installation. At the trial, the prosecution presents all of their evidence. The defense counters with evidence to show that the alleged victim drinks on a regular basis, admits to only having about 5 beers and two shots of tequila, and that she did not report the assault until her fiance’ discovered that she left the club with another man.

If the jury votes 9-0, 8-1, or 7-2, or 6-3 in favor of conviction, he is convicted and faces sentencing from the same jury. Notice, fully 1/3 may believe that reasonable doubt exists.

However, if the vote is 5-4 or below, he is fully acquitted. That’s right, fully acquitted. In the military, there is no such thing as a hung jury. He walks away, never to face trial for the allegations again.

Looking at a more contemporary example, consider Rod Blagojevich. He faced trial and was only convicted of one of the 24 charges. As I understand it, one juror held the dissenting vote for the other 23. As it stands, he is convicted of the one charge, but the others were declared a mistrial, and he faces trial again on the remaining 23.

Lets assume that he faced trial in a military court. Because of the rules, Blago would be found guilty of all 24 charges. That’s bad for Blago.

However, if his defense team convinced at least 5 of the 12 in a military court, he would find himself walking out of the courthouse as a free man. No retrial. No hung jury. Nothing but acquittal.

Will the Military Change?

First, we must understand that the UCMJ is established in Title 10 of the United States Code. It is federal law passed by Congress and signed by the President. Changing that requires, well, an act of congress or action by a court to declare a provision unconstitutional.

The chances of a court taking action to radically reshape the UCMJ landscape are slim.

The last significant look at military criminal procedure came late last year when the DC Circuit looked at a case involving a question about the adequate number of jurors in a military trial. The military requires that a Special Court-Martial (military misdemeanor court equivalent) jury consist of at least 3 jurors. The case, Sanford vs. United States, involved a former Marine who challenged his conviction at a Special Court-Martial due to the fact that it was comprised of fewer than 6 members.

The court makes a very poignant finding when it notes the following:

Members of the military are entitled to the basic guarantees of due process. Burns, 346 U.S. at 142–43. However, the Sixth Amendment right to a criminal jury trial does not, itself, apply to the military. Ex parte Quirin, 317 U.S. 1, 38–41 (1942). Therefore, Sanford’s challenge to a special court-martial of less than six members must proceed without the benefit of that right. Thus, Sanford was obligated to demonstrate to the military courts that, under the Fifth Amendment, “the factors militating in favor of [at least six-member courts-martial] are so extraordinarily weighty as to overcome the balance struck by Congress,” Weiss, 510 U.S. at 177–78 (quoting Middendorf, 425 U.S. at 44).

Therefore, the burden is on the accused to demonstrate that the military system and rules are unfairly prejudicial, and he must also show why the prejudice outweighs other procedural protections that benefit the accused. The idea that certain constitutional protections are not provided may be unsettling, but it is the controlling perspective for those courts with the power to change the state of criminal procedure within the military.


Ultimately, I enjoy attempting to put my finger upon the pulse of criminal justice trends within the US and especially my chosen niche. In general, I like the UCMJ. It provides many safeguards, rights, and protections largely not found outside of military fences. My perspective, however, is also colored by the fact that I am familiar with the system and have a certain level of comfort within it.

I have seen cases where a split jury in the military acquitted a soldier. The same split would likely result in a retrial outside of the military installation gates (prolonging the procedural hell for the accused). At the same time, there were many occasions where I longed to convince just one person on the jury in order to gain some level of entropy for my client. We all long for extra leverage.

When we really boil it down, when 1/3 of the jurors believe reasonable doubt exists, it is a pretty clear indication that it probably does.


2 thoughts on “Just Enough to Overturn a Veto: Finding Guilt in a Military Court

  1. Thanks for the blame, but I’ve still got a question: What is the rationale behind the split? Is there any caselaw or legislative history to explain how they came up with this system, or why the division is considered valid?

    • I’m continuing to look at that.

      Ultimately, here’s what I have so far:

      1. Our country has taken great pains to separate military justice from every other system of justice in our country. Essentially, Congress is tasked to ensure that military justice occurs with the primary goal of maintaining the strength of our military.

      2. Courts-Martial are considered to be an Ad-Hoc Tribunal, and were not standardized until after WWII with the Uniform Code of Military Justice. Yet, they are still considered separate from traditional courts (though sharing much).

      3. A flurry of cases were appealed in the late 1970’s regarding the size of the jury and the necessary votes to convict. Those cases address the size factor at length, but the issue as to the 2/3 voting requirement is conspicuously silent in the cases I read.

      4. US v. Guilford, 8 MJ 598 is the most prominent I found, and it glossed-over the issue.

      5. I’m looking into the history, and nowhere can I find where someone arrived at the 2/3 rationale. I’ll continue looking, though.

      A quote from Guilford says a lot without being too direct:

      It cannot be gainsaid that the military trial must be fair and impartial. See, e. g., United States v. Lamela, supra, 7 M.J. at 278; United States v. Cleveland, 6 M.J. 939, 942 (A.C.M.R.1979). The trial is, however, by a unique, military tribunal that is essentially different from the jury envisioned by the Sixth Amendment. The composition of courts-martial is different, as the members are drawn exclusively from the accused’s own profession based on specified qualifications (one of which is judicial temperament), with specialized knowledge of the profession, and subject to only one challenge other than for cause.[FN6] Their functioning differs, too. For example, it includes the questioning of witnesses and the determining of sentences. In view of such compositional and functional differences, the studies relied upon in Ballew and Burch are inapposite. United States v. Wolff, supra, 5 M.J. at 925. The differences between the institution of courts-martial and the institution known as a jury have been recognized as necessary as well as constitutional. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). When the use of courts-martial has impinged on constitutional rights, the remedy has been to limit the exercise of their jurisdiction rather than to alter the nature of the tribunal, for courts-martial are not fundamentally unfair. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).

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