A few years ago, the Supreme Court of the United States (SCOTUS) ruled the Constitution requires a unanimous verdict in criminal trials. The U.S. military does not. Last week, SCOTUS agreed that is ok. That is bad news for millions of American citizens. And if a draft is every re-instated, for all of America.
Ok, before I get skewered, I am not equating the experience of African-Americans during slavery and Jim Crowe to that of service members in modern American society. Just go with me a bit.
In principle, Dred Scott held that a category of people on American soil cannot and never shall be entitled to the rights and privileges enshrined in the Constitution of the United States. Side note–a civil war ensued. Plessy held that a separate legal system can constitutionally exist in America, so long as it was “equal in quality” to that required by the Constitution of the United States.
Both decisions were ultimately abrogated or overruled. Thankfully.
But now that I have your attention, let’s turn to one community whereby those principles still continue to exist.
To demonstrate this latest reminder, let’s talk about John Doe.
John Doe is a senior non-commissioned officer in the U.S. Air Force; he is eligible to retire in one year. Stationed at Joint Base Andrews, he lives off-base in Alexandria, Virginia, in a townhouse. After hosting a New Year’s Eve party at his home, Fairfax County police arrested John for what appeared to be a sexual assault. Shortly afterward, the base legal office requested jurisdiction from Fairfax so that he would face a court-martial rather than a state criminal trial in Virginia. The Commonwealth prosecutor declined. The salacious facts, both of the alleged assault and John’s active duty status, were all over the news, and Commonwealth Attorneys are elected.
But it appears the media oversold how salacious the case was, and the case was actually a much closer call. The state jury twice informed the judge it could not reach a unanimous verdict as required under state law. He declared a mistrial and set a new trial date.
The legal office again contacted the Commonwealth. In an email, the Chief of Military Justice explained, “it is much easier to convict in the military because we do not require a unanimous verdict.” Overworked and under-resourced, and knowing it had a weak case, the Commonwealth agreed and turned over jurisdiction.
A general court-martial found John not guilty of sexual assault, but guilty of attempted sexual assault. It sentenced him to confinement for four months, forfeiture of all pay and allowances, reduction to the lowest enlisted rank, and a dishonorable discharge. The intermediate appellate tribunal affirmed his conviction, ignoring his personally raised issue that he was denied a fair trial. The military’s supreme court declined to hear his appeal.
Once released, he will be ineligible for VA benefits. He may be required to register as a sex offender.
Of course, John Doe is not real. But though not at Joint Base Andrews, the facts substantially mirror a prior case of mine.
In Ramos v. Louisiana, SCOTUS ruled the Sixth Amendment right to a jury trial requires criminal verdicts to be unanimous, and held that right applied to the States through incorporation under the Fourteenth Amendment’s Due Process Clause. It did not address whether its ruling applied to courts-martial.
A general court-martial convicted Anthony Anderson, Master Sergeant (E-7), for “attempted sexual abuse of a child in connection with . . . online communications with fictitious thirteen-year-old ‘Sara.’” The military judge denied his civilian defense counsel’s motion requesting the court-martial either require a unanimous verdict or, alternatively, to order the panel to disclose whether the verdict was unanimous (ballots are secret). The military judge sentenced him to twelve months confinement, total forfeitures of pay and allowances, reduction to E-1 (lowest enlisted rank), and a dishonorable discharge.
The Air Force appellate tribunal affirmed; the Court of Appeals for the Armed Forces (CAAF) agreed to review one issue raised by Anderson’s civilian counsel: whether Anderson “was deprived of his right to a unanimous verdict as guaranteed by the Sixth Amendment, the Fifth Amendment’s due process clause, and the Fifth Amendment’s right to equal protection.
It said no.
Anderson’s civilian counsel then petitioned SCOTUS for a writ of certiorari to address the question: “Does the United States Constitution require that a general court-martial guilty verdict be unanimous?”
SCOTUS has a discretionary docket–it chooses which cases it will hear. The Court’s rules state a petition is “granted only for compelling reasons.” It then lists a non-exhaustive set of reasons that might be compelling:
1. The lower federal appellate court’s decision conflicts with another lower federal court’s decision, or
2. The lower federal appellate court’s decision decided an important federal question in a way that conflicts with a decision by a state court of last resort (supreme court), or
3. The lower federal appellate court’s decision “has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power.
4. The state court of last resort decided an important federal question that conflicts with another state court of last resort, or
5. The state court of last resort or lower federal appellate court decided “an important question of federal law that has not been, but should be, settled by [SCOTUS], or has decided an important federal question in a way that conflicts with relevant decisions of [SCOTUS].
Civilian counsel made three arguments why SCOTUS should grant review: CAAF misinterpreted the text of the Constitution and SCOTUS’s precedents, the issue is an important matter of constitutional law and has not been previously decided by the Court, and this is the right case to resolve the issue.
Civilian counsel’s first argued the CAAF misapplied the SCOTUS precedents it relied upon in holding the Sixth Amendment right to jury trial did not apply to courts-martial. SCOTUS, he argued, had never held that. Turning to the predominant judicial philosophy of the majority of justices (textualism), counsel argued CAAF’s rationale was inconsistent with the text of the Constitution. In, I believe, a brilliant tactic, counsel avoided the broad argument that the Sixth Amendment applied to all courts-martial. Instead, he provided a pathway for SCOTUS to make the more narrow ruling that it applied to general courts-martial, leaving the rest of the question for another day.
Civilian counsel then argued the Due Process Clause of the Fifth Amendment already applied to courts-martial, to include summary courts-martial, a proceeding SCOTUS previously ruled was not even a criminal prosecution. Setting up the next argument, civilian counsel explained SCOTUS had never previously decided the precise issue here–whether the Fifth Amendment’s Due Process Clause required unanimous verdicts in general courts-martial.
Finally, civilian counsel concluded his first argument asserting the Equal Protection Clause demanded SCOTUS consider whether unanimous general courts-martial verdicts are required. General courts-martial have jurisdiction to prosecute offenses similar to civilian criminal laws. CAAF wrongfully applied rational basis scrutiny rather than the required strict scrutiny analysis, considering the importance of the right at issue. But even if rational basis is the proper analysis, CAAF still failed.
Civilian counsel’s second argument turned to why this question was an important matter of constitutional law that had yet to be decided. He focused on the breadth of not only the size of the military’s jurisdiction (millions of citizens), but also the vast array of offenses that “substantially overlaps with federal and state criminal law.” These proceedings affect “important liberty and property interests.” The Uniform Code of Military Justice (UCMJ) subjects service members, former service members, family members of service members, service academy cadets, military contractors, and members of non-military governmental agencies to trial by court-martial. And that’s not even talking about what happens if we ever re-instituted the draft! If that wasn’t important enough, general courts-martial have jurisdiction over a vast array of offenses with no required connection to military service. Counsel concluded with an argument that the importance of the issue required SCOTUS be the final arbiter, particularly because it was the only Article III court with the authority to do so. At the very least, the Court should give the issue a full hearing.
Civilian counsel’s third argument closed his petition arguing this was the proper petition to consider. After granting review in Anderson, CAAF granted approximately twenty other petitions but did not order briefing. These are known as “trailer” cases. Had CAAF reversed and remanded Anderson, it would summarily do the same in these cases for consideration in light of Anderson. After Anderson, CAAF summarily affirmed them. Sixteen service members filed a joint petition for a writ of certiorari, also with a civilian counsel. Anderson’s counsel noted CAAF only had the benefit of briefing and argument in this case, and this case more comprehensively addressed the issue before SCOTUS. And, being a single petition on direct review, it was a lot less messy.
On 20 February 2024, the Supreme Court denied Anderson’s petition.
The issue couldn’t garner the interest of at least four justices. Not one justice believed the issue important enough to publish a dissent to the denial (dissents to denials are a whole issue for another day).
Sure, you can come at me with the doctrine “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case. . . .” But we in practice all know that is no longer true, if it was true true at all. First, if that were the case, there would be no purpose for dissents to denials of petitions for writs of certiorari. It would be expressing an opinion on a non-opinion.
Second, that’s akin to saying a news producer that decides not to run a story within the allotted time frame imports no expression of the value the producer places on the story. Of course it does. A news producer has limited time and a vastly unlimited number of stories. Weighing importance and impact is natural human behavior, and necessary. Declining to highlight a story imports an opinion of the value or impact of the story.
Law is no different. Sure, a denial is not a holding. But it is a decision that the issue raised, even if remotely adequately argued by counsel, is not worth the time of a minority of the justices on the Supreme Court of the United States.
Nearly a decade ago, I published my first law review article studying the application of constitutional rights to United States service members. In that article, I proposed that United States service members are entitled to be treated at least like children in schools, and inmates in prison. In a subsequent article, I studied the CAAF’s effectiveness as a court of last resort, and concluded it largely failed in its role, relegated to error correction due to a misunderstanding of its role or the shortcomings of independent judicial temperament amongst the service intermediate appellate tribunals (or both).
For reasons I’ve long discussed, society, the federal judiciary, and academia has long ignored military justice. Congress seems to only care when it wants to make it easier to convict, rather than protect, service members.
There are many factors to consider when thinking about hiring a civilian defense counsel for a court-martial, appeal, or both. Cost, prior service, experience, record are certainly up there. But I think it is just as important to have an advocate that comprehensively understands military society, military history, military legal history, and American history. To be able to understand how we got here in order to persuade a military judge and or panel why the issues are important (and when they don’t make sense). And that lawyer should have a record of that knowledge and experience too.
This is the Caruço Law difference. Learn more on my About page and on my firm’s website.