COURT-MARTIAL NULLIFICATION: WHY MILITARY JUSTICE NEEDS A 'CONSCIENCE OF THE COMMANDER'.

• Author: Weber, Jeremy S.

1. INTRODUCTION II. A BRIEF OVERVIEW OF NULLIFICATION A. Definition and Background B. Civilian Courts' Approach to Jury Nullification C. The Military's Approach to Nullification 1. Appellate Cases 2. Instructions III. MILITARY VS. CIVILIAN CRIMINAL JUSTICE--KEY DIFFERENCES A. The Role of the Commander B. The Long Arm of Military Law C. The Lack of a Right to a Jury Trial D. Why Differences in the Military Justice System Argue for a Nullification Instruction IV. NULLIFICATION AND THE MILITARY'S SEXUAL ASSAULT PROBLEM A. The Sexual Assault Problem and the Pressure on Commanders B. Other Changed Conditions 1. Broad Array of Offenses 2. Mandatory Minimums/Collateral Consequences 3. The Contraction of the Article 32 Hearing 4. The Demise of the Terminal Element 5. Nullification is Already Happening V. PROPOSED APPROACH A. When an Instruction is Appropriate B. The Instruction VI. CONCLUSION I. INTRODUCTION

   These are interesting times for the U.S. military justice system. Long criticized for being too harsh on accused service members and failing to fundamentally protect due process for those in uniform, (1) the military justice system has faced severe criticism in recent years on the opposite front. Members of Congress, the media, and special interest groups have roundly criticized military justice for being too soft on crime--specifically sexual assault cases--by prosecuting too few cases and achieving too few convictions. (2) As a result, Congress enacted sweeping changes to the military justice system, most of them prosecution- and victim-friendly. (3) Still, Congress and other observers are unsatisfied and have focused their efforts on pressuring commanders into trying cases or attempting to remove commanders from the process altogether. (4)

   In such an environment, commanders feel tremendous pressure to send sexual assault cases to trial. Commanders faced with allegations of sexual assault are presented with two choices: refer the case to a general court-martial or face higher-level scrutiny. (5) If the latter path is chosen, it may prove costly to a commander's career, as higher-level commanders are reliant on Congressional approval of promotions, particularly at the general or flag officer level. (6) Commanders face a temptation to send cases to trial and let the trier of fact determine the member's guilt or innocence rather than assume the risk of public or Congressional second-guessing.

   In the military justice system, the trier of fact is often (but not always) a panel of "members" that resembles a jury in some ways but differs in other key respects. (7) These members presumably provide a check on commanders' decisions to send cases to trial by rooting out cases with insufficient evidence and rendering a "not guilty" finding when the government has not proven its case beyond a reasonable doubt. In another sense, however, members are ill-equipped to serve as a safety valve on commanders' exercise of their prosecutorial discretion. Members are not well-armed to deal with the question of whether the accused deserves to be convicted, even if the government has proven its case beyond a reasonable doubt. Stated otherwise, members do not have an immediately apparent way of determining whether a conviction would be unjust in a given case.

   The military justice system's unique features call for military judges to take a different approach than their civilian counterparts by affirmatively instructing court-martial panels about their authority to "nullify" a conviction even when the government has met its burden of proof. The political environment regarding sexual assault in the military heightens the need for such an instruction. The pressure on commanders to send sexual assault allegations to trial, combined with a slew of developments regarding sexual assault in the military justice system, all indicate that court-martial members should be informed about their nullification authority. In addition, a limited nullification instruction is the only way to assure victims that members do not lightly dismiss the seriousness of their allegations, while placing guidelines upon the practice. Members are the only actors in the military justice system with the power to effectively check commanders' decisions regarding courtsmartial, and if they are not instructed on this power, there is no telling when, how, or if they will use it.

   This article begins with an introduction to jury nullification, laying out the competing policy arguments for and against nullification, and comparing how civilian and military courts have treated the issue. It then examines some of the military justice system's longstanding unique attributes and explores how these characteristics call for a more liberal approach to recognizing nullification. The article then turns to the specific issue of sexual assault in the military and examines why the pressure created by this issue has amplified the need for a nullification instruction. Ultimately, this article proposes such an instruction in an effort to restore the balance between victims' rights, protections for accused service members, and the preservation of commanders' authority.

2. A BRIEF OVERVIEW OF NULLIFICATION

   1. Definition and Background

      Jury nullification (sometimes called jury independence or jury rights) can be defined as follows:

      A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness. (8) In other words, jury nullification occurs in criminal trials (9) when the jury refuses to convict the defendant even though the prosecution has proven its case beyond a reasonable doubt. The jury might take such an action because it believes the underlying law to be unjust, because it sees the decision to charge this particular defendant with a crime as an abuse of prosecutorial discretion, because it sees exigent circumstances behind the defendant's action, or because it is concerned about the harshness of the penalty or collateral consequences of convicting the defendant. (10)

      The history and development of jury nullification have been thoroughly explored elsewhere and need not be laid out in great detail here. (11) Briefly, nullification played a deeply important role in the early American psyche. Colonial juries played a "vital and celebrated role in American resistance to British tyranny leading up to the revolution," with juries frequently refusing to enforce British laws colonists perceived as unjust. (12) In the late 1700s, leaders such as John Adams, Alexander Hamilton, and prominent judges believed that "jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court...." (13) In enacting the Sixth Amendment, the Framers of the Constitution "believed that jury nullification was essential to prevent government by judge or government by the rulers in power through the judiciary." (14) This position was shaped in large measure from attempted prosecutions for seditious libel against the Crown or its colonial proxies. In one oft-cited example, the New York printer John Peter Zenger found himself on trial in 1735 for seditious libel when his newspaper criticized the state's governor. (15) Because truth was not a recognized defense to the charge, and because it was clear that Zenger had published the statement, Zenger's defense counsel argued that the jury should decide for themselves whether truth should be a defense to seditious libel. (16) He successfully pressed the jurors "to see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings," persuading the jury to acquit Zenger. (17)

      Jury nullification is closely tied to the question of whether the jury's job is simply to determine the facts, or whether it may interpret the law as well. In early America, juries were regularly entrusted with deciding questions of law in addition to factual matters. (18) Thus, juries could more easily engage in nullification by interpreting the law as broadly or narrowly as they saw fit based on the situation before them. (19) However, it was not long before professional judges began to view the law's interpretation as their domain, building off the position in Marbury v. Madison that it is the judiciary's role to "say what the law is." (20) Courts thus slowly began to reel in juries' power to determine not only what the law "is," but what the law "should be" as well. By 1835, a Massachusetts federal court laid down a marker: juries may have the power to nullify, but they do not have "the moral right to decide the law according to their own notions, or pleasure." (21) Sixty years later, the U.S. Supreme Court followed suit, rejecting the proposition that juries have the "power arbitrarily to disregard the evidence and principles of law applicable to the case on trial." (22) By the end of the nineteenth century, most courts had struck down the practice of instructing juries that they were the judges of law as well as of fact. (23) Today, nullification is often viewed as a relic of history, a vestigial power that may have been appropriate for important moral questions such as Zenger's seditious libel or fugitive slave cases, but that does not deserve the dignity of explicit recognition in modern courtrooms. (24)

      Jury nullification is as much a policy question as a legal one, with robust advocates on either side of the debate. Few issues generate as much controversy, with so few answers, as jury nullification. (25) Some advocate that jury nullification should be not only a right but a duty of jury members to act according to their consciences, a necessary safeguard against prosecutorial overreach. (26) Conversely, some argue just as passionately that jury nullification...