Playing the Numbers: Court-Martial Panel Size and the Military Death Penalty

• Author: Dwight H. Sullivan
• Pages: 01

MILITARY LAW REVIEW

Volume 158 December 1998

PLAYING THE NUMBERS:

COURT-MARTIAL PANEL SIZE AND THE MILITARY DEATH PENALTY

DWIGHT H. SULLIVAN1

1. Introduction

   On 1 April 1998, 3387 inmates were under death sentences in the United States.2 More than three-fourths of these inmates were entitled to have their sentences determined by twelve-member juries.3 While several hundred were tried in systems where judges decide whether to impose a death sentence,4 only six were convicted and sentenced to death by a panel of fewer than twelve lay members. All six of those death row inmates5 were tried in the military justice system, which allows as few as five lay members to impose a death sentence.6

   Merely because the military's death penalty system is unique, however, does not necessarily mean it is unconstitutional. The Supreme Court has upheld aspects of the military justice system that would be unconstitutional in any civilian criminal justice system.7 The Court of Appeals for the Armed Forces (CAAF)8 has expressly rejected a challenge to capital courts-martial panels with fewer than twelve members,9 and the Supreme Court has shown little interest in the issue.10

   This article concludes that the judiciary is unlikely to invalidate capital courts-martial with fewer than twelve members. The unanimity requirement for military death penalty cases, however, suggests that the

   lack of a fixed number of members is a far more significant systemic defect than the lack of twelve-member panels. Because members who are removed from a court-martial panel are usually not replaced when a quorum remains, the defense in a capital case faces a dilemma: whether to remove biased members, which carries the heavy price of reducing the statistical chance of finding the one vote necessary to avoid a death sentence. In cases where the defense chooses not to pay that price, the larger panel size can be preserved only by declining to challenge the biased member, thereby compromising the system's impartiality and reliability. Additionally, allowing the variable court-martial panel size to influence the outcome of capital cases introduces an arbitrary and irrational factor into the military death penalty sentencing scheme.

   This article reviews the historical development of the current court-martial-panel size rules, followed by an examination of the law governing jury size in civilian criminal justice systems. This article then presents an overview of military death penalty procedures and examines the constitutionality of trying capital courts-martial before panels with fewer than twelve members. After analyzing the constitutionality of trying capital courts-martial before panels with no fixed size, this article concludes with

   3. In 29 states and in federal Article III courts, capital defendants have the right to have their sentence determined by juries. ARK. CODE ANN. § 5-4-602 (Michie 1997); CAL. PENAL CODE § 190.4(2) (West 1988); CONN. GEN. STAT. ANN. § 53a-46a (West Supp. 1998); GA. CODE ANN. § 17-10-2(c) (1997); 720 ILL. COMP. STAT. ANN. 5/9-1(d) (West Supp. 1998); KAN. STAT. ANN. § 21-4624(e) (1995); KY. REV. STAT. ANN. § 532.025 (Banks-Baldwin 1998); LA. CODE CRIM. PRO. ANN. § 905.1 (West 1997); MD. ANN. CODE OF 1957 art. 27 § 413(b) (1996); MISS. CODE ANN. § 99-19-101 (1994); MO. ANN. STAT. §§ 565.006, 565.030 (West Supp. 1998); NEV. REV. STAT. ANN. § 175.552 (Michie 1997); N.H. REV. STAT. ANN. § 630.5(II) (1996); N.J. STAT. ANN. 2C:11-3 (West Supp. 1998); N.M. STAT. ANN. § 31-20-A-1 (Michie 1994); N.Y. CRIM. PRO. LAW § 400.27 (McKinney 1996); N.C. GEN. STAT. § 15A-2000 (1997); OHIO REV. CODE ANN. § 2929.022 (Anderson 1996); OKLA. STAT. ANN. tit. 21, § 701.10 (West Supp. 1998); OR. REV. STAT. § 163.150 (1997); PA. STAT. ANN. tit. 42 § 9711 (West 1982); S.C. CODE ANN. § 16-30-20 (Law Co-op. Supp. 1997); S.D. CODIFIED

   LAWS § 23A-27A-2 (Michie Supp. 1997); TENN. CODE ANN. § 40-35-203(c) (1997); TEX. CRIM. P. CODE ANN. § 37.071 (West Supp. 1998); UTAH CODE ANN. § 76-3-207 (Supp. 1997); VA. CODE ANN. § 19.2-264.4 (Michie Supp. 1998); WASH. REV. CODE ANN. § 10.95.050(2) (West 1990); WYO. STAT. ANN. § 6-2-102 (Michie 1997); 18 U.S.C.A. § 3593(b) (West Supp. 1998). States with jury sentencing and the federal government account for 2625 of the inmates on death row. See generally DEATH ROW, U.S.A., supra note 2. "[E]very state that delegates capital sentencing decisions to juries uses twelve person juries for this purpose and allows the return of death verdicts only with the jurors' unanimous consent." Stanton D. Krauss, Representing the Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing, 64 IND. L.J. 617, 644 (1989). Federal criminal juries also consist of twelve members and require unanimity for a verdict. FED. R. CRIM. P. 23(b), 31.

   a discussion of potential means to bring the military's death penalty system into closer alignment with its civilian counterparts.

2. Court-Martial Panel Size: An Overview

   Supreme Court case law indicates that history is a key factor in evaluating the constitutionality of military justice procedures.11 Accordingly, a legal analysis of capital court-martial panel size should begin with a historical review.

   4. In Alabama, Delaware, Florida, and Indiana, the jury makes a recommendation, but the judge decides whether to impose a death sentence. ALA. CODE § 13A-5-46 (1994); DEL. CODE ANN. tit. 11, § 4209(d) (1998); FLA. STAT. ANN. § 921.141 (West 1998); IND. CODE ANN. § 35-50-2-9(e)-(g) (Michie Supp. 1998). In Arizona, Idaho, Montana, and Nebraska, once a defendant is convicted of a capital offense, the judge determines whether to impose a death sentence without any jury input. ARIZ. REV. STAT. ANN. § 13-703 (West

      Supp. 1997); IDAHO CODE § 19-2515 (1997); MONTANA CODE ANN. § 46-18-301 (1997); NEB. REV. STAT. ANN. § 29-2520 (1995). In Colorado, the death penalty sentencing power is given to three-judge panels. COLO. REV. STAT. ANN. § 16-11-103 (West 1998). The nine jurisdictions where only judges possess the authority to impose death sentences account for 754 of the United States' death row inmates. See generally DEATH ROW, U.S.A., supra note

   2. The Supreme Court has held that the "Constitution permits the trial judge, acting alone, to impose a capital sentence." Harris v. Alabama, 513 U.S. 504, 515 (1995). The Court has even upheld the constitutionality of a judge imposing a death sentence against the jury's recommendation. Id.; Spaziano v. Florida, 468 U.S. 447 (1984). See generally Michael Mello & Ruthann Robson, Judge over Jury: Florida's Practice of Imposing Death over Life in Capital Cases, 13 FLA. ST. U.L. REV. 21 (1985). Even in these systems that allow judges to impose a death sentence, however, capital defendants are entitled to have their guilt or innocence decided by unanimous twelve-member juries. ALA. CONST. art. I, § 11 (12-member juries); ALA. R. CRIM. P. 23.1 (unanimity requirement); ARIZ. REV. STAT. ANN. § 21-102A (12-member juries in capital cases; unanimity requirement); COLO. CONST. art.

      2, § 23 (12-member juries); COLO. REV. STAT. ANN. § 16-10-108 (unanimity requirement); DEL. CT. CRIM. R. 223(b) (12-member juries); DEL. CT. CRIM. R. 31(a) (unanimity requirement); FLA. STAT. ANN. § 913.10 (12-member juries in capital cases); FLA. R. CRIM. PRO.

      3.440 (unanimity requirement); IND. CONST. art. I, § 7; State v. Scheminisky, 174 P. 611 (Ind. 1918) (interpreting the state constitution to require 12-member juries reaching a unanimous verdict in felony cases); IND. CODE ANN. § 35-37-1-1 (1998) (12-member juries); Brown v. State, 457 N.E.2d 179, 180 (Ind. 1983) (unanimity requirement); MONT. CODE ANN. § 3-15-106 (12-member juries); MONT. CONST. art. II, § 26 (unanimity requirement); NEB. CONST. art. I, § 6 (12-member juries and unanimity requirement for felony cases).

      A. The Historical Development of Court-Martial Panel Size

   1. The U.S. Army's Original Practice

      Before Congress adopted the Uniform Code of Military Justice (UCMJ) in 1950, separate laws governed Army and Navy courts-martial.12

   5. Lance Corporal Wade Walker was sentenced to death by a ten-member panel. Record, United States v. Walker (No. 95-01607) (on file with Navy-Marine Corps Appellate Defense Division, Washington, D.C.). Private Dwight Loving, Lance Corporal Kenneth Parker, and Senior Airman Simoy were sentenced to death by eight-member panels. United States v. Loving, 41 M.J. 213, 310 (1994) (Sullivan, C.J., concurring), aff'd, 517 U.S. 748 (1996); Record, United States v. Parker (No. 95-01500) (on file with Navy-Marine Corps Court of Criminal Appeals, Washington, D.C.); United States v. Simoy, 46 M.J. 592, 625 (A.F. Ct. Crim. App. 1996) (Morgan, J., concurring), rev'd, ___ M.J. ___, No. 97-7001/ AF (Oct. 20, 1998) (setting aside the death sentence and authorizing a rehearing on the sentence). Sergeant James Murphy and Specialist Ronald Gray were sentenced to death by six-member panels. Record, United States v. Murphy, (No. ACMR 8702873) (on file with Army Defense Appellate Division, Falls Church, Va.); Record, United States v. Gray (No. ACMR 8800807) (on file with Army Defense Appellate Division, Falls Church, Va.). The two most recent courts-martial to impose death sentences, those trying Army Sergeant William Kreutzer and Marine Sergeant Jessie Quintanilla, both had twelve-member panels. Record, United States v. Kreutzer (No. ARMY 9601044) (on file with Army Court of Criminal Appeals, Falls Church, Va.); Darlene Himmelspach, Marine Sergeant Is Sentenced to Death, SAN DIEGO UNION-TRIBUNE, Dec. 6, 1996.

      The 1775 Articles of War that governed the Continental Army required that general courts-martial consist of thirteen officers.13 While the 1775 Articles of War did not set out the vote necessary to adjudge a death sentence,14 in

      1776 the Articles of War were amended to require a two-thirds vote for capital sentences.15

      In the wake of the Revolutionary War, the Army retained a small force of less than...