The Hung Jury: A Court-Martial Dilemma

• Author: By Major Hugh E. Henson, Jr.
• Pages: 03

What problems arise f7mn a failure of a court-mwtial to agree either on the findings or the sentence of the court? On the fndinos, there is the situation when the court is divided with a majority which is less than two-thirds voting for conviction, and the mniority continues to vote fo7 reconsideration. On the sentence, there aTe

problems arising from the interrelatiomhi0 of article 52, article 106, and article 118(l) and (I)of the Code, with paragraph 76b of the Manual, as toell as that of the law officer's duty to instruct the court-martin1 that zt may return a sentence of no pmishmnt. In addttion, there is the general problem of the place of the so-called Allen charge. The author concludes by recommending statutory amendments in order to avoid the problem discussed.

1. INTRODUCTION

"Sir, there is no such thing as a hung juri in the militaw," a law officer instructed the president of an Air Force general couri-martial in 1962, in the case of United States 71: Jones.' If this statement were true, it would represent an innovation in the Anglo-American legal tradition, for the disagreement of juries and the resultant invalidity of the trial in question has been an old and troublesome problem to the common law2 That problem is, of course, that the invalidity of the trial-r any other succeeding trial, for that matter-creates the necessity of another trial, causing delays in the ultimate disposition of the case,

'This aitiele %,as adapted from a them. presented to The Judge Ad"* $ate Genera!'$ School, U.S. Army, Charlotte%rille, l'lrglnla, ahlle the Bu-thor wsb a member of the FourtDenth Career Course. The oplnlonb and eoneluaiana presented herein *re tho= of the author and do not neces~anl? represent the YI~UBat The Judze Advocate General's School or any other governmental agency

"JAGC, US

Army: Judge Advocate, Eighth U.S. Army Support Command; B.A., 1956, Baylar Unii'eriilly: LLB., 1959, Yale Lar Sehaal; adnutted to practice befare the Texas Supreme Court and the United States Court of Military Appeals.

'14U.S.Chl.A 177 178 33C.M.R.389 390 119631.

I See, for example,' Wiiliam Peds b ~ a l dlncumed ~n Nagor, Thc Jury

That Tmrd Wdiiam Penn. 50 A.B.A.J. 168 (1964).

increased casts. the possibility of loss of memoq or the death of witnesses. and so o n 3

Hung juries arise in our civilian federal criminal system because of the provision of the Frdetnl Rides of Criminal Proce-diiie which requires that the verdict of the jurj- must be unanimous 6 Such nell-known cases as the common trial of Dr. R. Bernard Finch and Carole Tregoff and that of Collie Leroy LVilkins 6 show that. eien in our state courts and wen within recent months. the problem of hung juries pl~pues our criminal law system.

In the military context, hoxever, if the statement of the law officer quoted above were true. the Cn;iorm Code a i .Ililitn,u Jxs- Id appear io hare solved the problem of the huns juri es would be neatly presented at only one trial, and finally decided there-barring other circumstances. of course. which also could necessitate deciarmg the trial inralid. If the statement of the law officer were true, therefore. not only would the Code represent a distinct improvement mer the civilian community's criminal law sl-stem. but also it would be an improvement over the militan.'s awn past systems as w l l .

Colonel LVinthiop. in his oft-quoted treatise an militan law, recognized the possibility of hung lurks in the military system of

eed qof of COY TI^ be rolonged where.

w a d e io agree. and rhus termmate the proceeding. . . :

The Court of hlilitary Appeals. in digesting several authorities and source^ relating to the Articles of \Tar in the period between

the late 1800's. when Colonel \\mthrop wrote his treatise. and the current Code. also recognized the paasibility that there can be hum juries in the mihtai-. srstem The Court said that.

It must be admitted, however, that the prnblem was probably not a very great one. In the first place, &s recognized by an Air Force Board of review in the case of Cnited States e, Blair,' the old concept under the Articles of War was that a court-martial which could not reach a verdict in a case has failed to discharge its duty. In addition. there W-BS the concept that a court-martial was only one of the disciplinary tools at the commander's disposal. and, like all other functions of command, it wm one over which he could not only legitimately but properly exercise control. The major way that this was done was that the commander had the power to return a ca8e to the court to reconsider It8 findings or sentence or both, if he did not agree with them. He could state in his returning correspondence to the court the rewns why he disagreed.10 It was not until the 1920 Articles of n'ar that this rule was changed to allow the decision of the court-marLial to have the degree of finalityll which it retains under our current Code. Accordingly. it u-&s not until the enactment af the 1920 Articles of War that hung juries could really have an impact on the militan. system. for only when the commander became bound by the results of the deliberations of the members of the court,does there begin to be an analogy to the problem of the hung jury in the civilian context, As we shall discuss, the manner in nhich hung juries in the military arise is different from that of the civilian community; but the final result-the invalidity of the trial-is the same.

On the other hand, the statement of the law officer quoted above indicates, if nothing else, that there was a widelyheld view that if the 1920 Articles of War had made hung juries a real problem in the military, the 1950 Code had eliminated that problem. This view was not one held oniy by non-lawyers in the armed services; the fact that the quotation w8s given by a legally-trained law officer as an instruction to B court-martial president shows that even attorneys thought that the Code had eliminated the problem of hung juries in the military.

Under the language af the Code, the idea that "there can beno such thing as a hung jury in the military" is a reasonable view. Artic'~ 52 of the Code, which establishes the number of votes required both to convict and to punish, is worded to say that the conviction or Dunishment shall not result "exeent bv the

. "

sACP 14468, Blair. 21 C 3I.R. 869 (1967).''Rev. Stat S 1342 (1875) I1874 Articles of U'arl See DAIIS A TIIEITISE 'I See Articles of War, 1920, ch. 2, 41 Stat. 787.

OR THE MIL~IIRI LAW OF THE UVITED

STATES 158 (3d ed. 19131

concurrence of" a certain percentage of votes. The implication of this language 1s that without the required percentage, the particular result in question will not occur.

This inference is further barne out by the Mnnunl for Courts-Mnrtinl. It repeats, relative to the findings of the court, the "except by the concurrence of" language of the Code itself, and adds that "A finding of not guilty results as to any specification or charge if no other valid finding is reached thereon . . . ."Iz

The second draft revision of the hlanual retains this language."

Concerning sentences. the Manual states that after propasals for sentences have been made and submitted to the president,

The eawt then i'atei on the proposed sentences, beginning with the lightest. until B sentence IS adopted by the emcuirence of the required number of members. . . .

It is rhe duly of each member to vote for a proper sentence far the offense or affenres of ahieh the accused has been found gyil~y, without regard to his opmon or vote as to the gunit or innccance of the PC.cued . .'I

[Emphasis added.]

The second draft revision of the Manual also retains this Ian-guage.'s

The fact of the matter is that the inference to be d r a m from these passages, namely that there an be no hung juries in the military, either on findings or sentence, is just not true. Indeed,the Jones case was reversed specifically because of the law officer's incorrect advice that "there is no such thing as a hung jury in the militan.." The Court reasoned that a court-martial cannot be made to reach a verdict or a sentence, for

To hold that the court membera musf agree or be conaidered as having "faded to dincharse their dutl'' IS repugnant to the basic phiioiophy onwhich this country is ertahlirhed-the right of free men TO disagree srchaut being penalized therefor. , . .Ib

By so stating, the Court gave its first approval of the fact that hung juries not only can in fact occur in the military system, hut also that the system must allow for them in order to preserve basic fairness. Yet in the face of the language of the Code and the Manual, as cited above, haw can this be?

'" Y i \ L i L FOR COIRTS->IARTIAL, UhlTFD STATES. 1951, para i4d(3) [here- I" See >isnus1 tar Courts-Martial, United Stater, 1864 l2d draft), para '* 1961 >IC!$ para. 761121.

"See 1961 MCM, para. 766(21 (2d drait)

afterelted as 1961 MCMI.

i4d(3, [hereafter oted 8s 1961 MCM (2d drs.ft11.

h - ~ m e d

sZarer J ~ ~ ~ ~ ,

14 u.s.c.n.i. ii7, 180, 33 c X R 380. 382

(19631

62 AC" lldlS

HUNG JURY

11. HUNG JURIES UNDER THE CODE

1. FINDINGS

   On the findings, the court can become involved in an irreconcilable disagreement because of the relationship between the number of votes required for conviction and the ability of the court to reballot on guilt OT innocence after its initial determination has been reached. The arbovwuoted language of paragl'aph 74d(S) of the Manual (that if no other valid finding results when the vote is taken, a finding of not guilty automatically results), has been intelpreted to mean that the initial vote determines this issue." But immediately after establishing this principle, the Manual continues by saying

   however, B court may mmsider any Anding before the lame i8 formallp announced in open court. The court may .Lo reconside? my Knding of pilty on its a m motion at any time &fore it has first announced the aentenee in the eaee.'.

   Unfortunately, the Manual does not go an to say...