Improving criminal jury verdicts: learning from the court-martial.

• Author: Holland, Robert F.

1. INTRODUCTION

   One of the recurring themes in recent American legal scholarship is the inadequacy of the contemporary jury system. (1) Some proposals for criminal jury "reform" suggest that we abandon our reliance on juries as arbiters of the facts and, ultimately, of culpability, while others propose to increase the jurors' participation in the trial process to improve the jury's performance in its crucial role as factfinder. (2) This Article suggests that adopting several specific procedures used by the modern (3) American court-martial would enhance the effectiveness and finality of verdicts in state jury trials for noncapital (4) criminal cases: reaching the verdict based upon the consensus of a super-majority (5) of the jurors, through secret written ballot, (6) with acquittal resulting for any charge for which a guilty verdict is not reached. (7)

   Readers may ask whether the scope of modern military criminal practice provides significant experience from which civilian practitioners could learn anything useful. Are there enough military criminal trials to offer any meaningful comparison, as opposed to minor anecdotal interest? Are the types of allegations handled by courts-martial significant enough to offer any real parallel to criminal trials in civilian society?

   With regard to the first question, the number of courts-martial is indeed significant enough for comparative purposes. Since 2000, courts-martial have tried almost 28,000 American military personnel. (8) Further, with approximately 1.4 million American military personnel currently on active duty (9) (and thus potentially affected by the military criminal justice system), military trials conducted under the Uniform Code of Military Justice (UCMJ) (10) affect a larger population than eleven states and the District of Columbia. (11) In short, both the number of courts-martial conducted and the number of American citizens subject to the court-martial process are comparable in magnitude to many of our smaller state jurisdictions.

   To answer the second question, courts-martial routinely decide the guilt or innocence of Americans charged with an incredibly wide range of criminal offenses, (12) whether those offenses were committed in the United States or abroad, and whether the offenses occurred on a military installation or in a "civilian" setting. (13) The offenses tried by courts-martial may involve victims who are civilian or military, (14) and courts-martial have jurisdiction even where parallel prosecution by civilian authorities (federal, state, or foreign) would be feasible. (15) As long as the person accused is a member of the armed forces in an "active duty" status, that person may be brought before a court-martial to stand trial for virtually any conceivable felony offense). (16)

   Thus, military trials regularly adjudicate serious felonies such as internet child pornography, child sexual abuse, rape, and murder, and not just minor disciplinary infractions peculiar to military life, such as AWOL or disrespect to superiors. (17) Further, courts-martial frequently impose serious sentences, including substantial periods of imprisonment and the death penalty, on those found guilty of felonies. (18)

   Skeptics may question whether the procedures followed in military jury trials are fair enough toward the accused that any civilian jurisdiction would even consider adopting any of their features. My own experience as a military trial judge, presiding over hundreds of felony trials by military jury during a recent ten-year period, leads me to conclude that the military jury trial, while no more perfect than any other human institution, is a fundamentally fair and sound process for determining criminal culpability. (19) More significant than my own opinion is that offered by one of America's most renowned trial lawyers, F. Lee Bailey, in 1996: "If I had an innocent client, I would want that person to be tried in a military court[, where] the accused receives a full and fair trial of the facts." (20)

   Of course, the military criminal law system has always had its detractors. (21) In 1969, the Supreme Court expressed serious concern about the adequacy of due process within the court-martial system. (22) In large part based on its reasoning that "military tribunals have not been and probably never can be constituted in such [a] way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians," (23) O'Callahan v. Parker ruled that courts-martial could only reach criminal offenses by service members if such offenses were "service connected." (24) The Court decided that the allegation that a soldier had broken into a downtown Honolulu hotel room and there attempted to rape a young civilian girl while he was on an evening pass away from his military post, in peacetime, (25) was not service-connected and, therefore, could not be tried by a court-martial. (26)

   However, in the 1978 case of Solorio v. United States, (27) the Court rejected that narrow view of the jurisdiction of military courts and held that the subject matter jurisdiction of courts-martial extends to any offense allegedly committed by military personnel while in "active duty" status. (28) Solorio expressed no criticism of the fundamental fairness of military trials, and the Court specifically overruled the O'Callahan decision. (29) In fact, since 1969, the Court has neither questioned the fairness of the military trial nor overturned any court-martial conviction; in each of the eight military cases where it granted certiorari, the Court affirmed the military conviction, (30) including one case that directly challenged the imposition of the death sentence by a court-martial. (31)

   In Weiss v. United States, the Court affirmed several court-martial convictions, rejecting the defendants' assertion that a trial by a court-martial violates the Fifth Amendment's Due Process Clause because military judges who preside over courts-martial are not sufficiently independent to guarantee a fair trial. (32) In holding that the lack of a fixed term of office for military judges does not undermine the due process to which a military defendant is entitled, (33) the Court clearly applied the "elementary [principle] that 'a fair trial in a fair tribunal is a basic requirement of due process'" with equal force to military trials. (34) Next, the Court reasoned that "[a] necessary component of a fair trial is an impartial judge." (35) Thoroughly reviewing the court-martial system's many safeguards aimed at preserving the independence of military judges, (36) the Court concluded that "the applicable provisions of the UCMJ, and corresponding regulations, by insulating military judges from the effects of command influence, sufficiently preserve judicial impartiality so as to satisfy the Due Process Clause." (37) Moreover, as the Supreme Court recognized in Weiss, the Court of Appeals for the Armed Forces (38) has demonstrated its willingness to overturn any court-martial conviction that is reached without the fundamental fairness or due process to which a defendant is entitled under the Constitution. (39)

   However, this Article does not undertake a general defense of the entire military criminal law system or attempt to demonstrate that the UCMJ provides the military defendant the same procedural fairness at trial that state or federal criminal justice systems generally afford American citizens. (40) The adequacy of due process within the military criminal justice system has been debated for years in academic circles and in Congress; adding to that huge body of commentary is beyond the more modest objective of this Article. (41)

   Instead, the thesis here is that several specific aspects of military jury practice satisfy contemporary notions of due process for civilian defendants and would enhance the reliability and efficiency of those trials, if these features were adopted for use in state criminal trials. (42) Accordingly, fair-minded observers ought to consider the relevance of these specific military trial features to state criminal trial procedures.

2. UNDERSTANDING TRIAL PROCEDURES USED BY THE COURT-MARTIAL

   Any discussion of how military jury practice differs from that found in many state systems requires an understanding of the structure and proceedings of a military trial. Federal law, and specifically the UCMJ, requires that the courts-martial conducted by any of the armed forces (43) conform to certain fundamental trial procedures. (44) The UCMJ provides the authority of the military trial judge as the presiding officer (45) of the court-martial, the procedures for challenging the judge and military jurors, (46) and the procedures for reaching the verdict and the sentence. (47) While the UCMJ leaves other important procedural details of the military trial process to the President's discretion, (48) the UCMJ nonetheless requires that such executive directives apply uniformly among the armed forces. (49) The President, by executive order, has provided those uniform supplementary procedures in the Manual for Courts-Martial (MCM). (50) The combined effect of the UCMJ and the MCM is that the jury trial practices used by each of the several armed forces are the same. Thus, while this Article discusses military jury practices within the context of an Army general court-martial, (51) the same features apply in any military trial, whether the defendant is a sailor, airman, marine, or coastguardsman.

   When a senior commander considers that the allegations of criminal conduct (52) against a soldier are serious enough to warrant consideration by a military court with authority to impose felony-level punishment, that senior commander designates an experienced officer from within the command to investigate the allegations and then report back in writing. (53) This procedure, known as an "Article 32" investigation, consists of a preliminary hearing at which...