Why are non-unanimous (court-martial) guilty verdicts still alive after ramos?

• Author: Dan Maurer
• Position: Professor, National Security Law Department, The Judge Advocate General's Legal Center & School; Lieutenant Colonel, U.S. Army Judge Advocate General's Corps.
• Pages: 127-177

WHY ARE NON-UNANIMOUS (COURT-MARTIAL) GUILTY

VERDICTS STILL ALIVE AFTER RAMOS?

Dan Maurer*

ABSTRACT

The Supreme Court’s 2020 landmark decision in Ramos v. Louisiana finally con-

firmed that the Fourteenth Amendment incorporates the Sixth Amendment’s guarantee

of unanimous verdicts in criminal jury trials against States, ending the last vestiges of

Jim Crow-era juror racial disenfranchisement remaining in two States’ criminal pro-

cedures. It was not a shocking decision, and it was well past due: 400 years of com-

mon law practice reflected in the laws of forty-eight States and the Federal Rules of

Criminal Procedure already required unanimous guilty verdicts, along with thirteen

prior Court decisions validating this fundamental attribute of jury fact-finding.

Nevertheless, one holdout remains: it is a niche federal jurisdiction that tries cases

nationwide and in foreign countries, makes no distinction between misdemeanor and

felony offenses, and invests many prosecutorial and some judicial powers in lay offi-

cials by virtue of their relative employment seniority and positional authority. Our

lone holdout is the military justice system—erected under federal law and managed

by both civilian and uniformed elements of the Executive Branch. Ramos did not—

indeed, no Supreme Court decision has—determined the constitutionality of this

court-martial procedural rule. No matter one’s understanding of military justice’s

purpose, this procedural rule stands out. But depending on that understanding, it

stands out as either a necessary idiosyncrasy of a necessarily idiosyncratic system or

as an unnecessary anachronism of an increasingly civilian due-process-driven system.

The dominate reason for this single outlier is best understood as a combination

of long-entrenched theories. First, that military courts-martial are implicitly

excepted from the demands of the Sixth Amendment’s jury requirement because

they are explicitly excepted from the grand jury requirement of the Fifth

Amendment and, in general, from Article III. Second, that Congressional deter-

minations of what “military necessity” requires, even in its justice system and

over questions of due process, should be given strong deference by the courts.

This Article suggests that Congress can and should amend the Uniform Code

of Military Justice (“UCMJ”) to conform how its jury-like “panels” determine

* Professor, National Security Law Department, The Judge Advocate General’s Legal Center & School;

Lieutenant Colonel, U.S. Army Judge Advocate General’s Corps. This Article was drafted and accepted for

publication while the author served as an Assistant Professor of Law, U.S. Military Academy at West Point.

Special thanks to Joshua Dressler, Eugene Fidell, Brenner Fissell, Timothy Grammel, Steven Levin, Frank

Rosenblatt, David Schlueter, William (Jeremy) Stephens, Rachel VanLandingham, Stephen Vladeck, and

Winston Williams for constructive advice and discussions on earlier drafts, and to the staff of American Criminal

Law Review for their timely and superb editing and production. The analysis and opinions in this Article are the

author’s personal views, and do not represent the ofcial positions or policies of the Judge Advocate General’s

Corps, West Point, or the U.S. Army. © 2023, Dan Maurer.

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guilt of an accused with every other American jurisdiction. Squaring a circle this

is not. No drastic reinterpretation of the Court’s Sixth Amendment-as-applied-in-

the-military need take place, and the argument that follows assumes that current

doctrine regarding the military’s carve-out from the jury requirement remains

static. Instead, Ramos provides the Court’s latest validation of this protection’s

worth, and it should be read in light of the 2018 decision in Ortiz v. United

States, in which the Court articulated a new “civilianized” vision of what mili-

tary justice’s primary purpose actually is. While departing from its previous

descriptions of the character of military law, the Court nonetheless is now con-

sistent with the overall arc of due process evolution required by Congress in the

last seventy years of amendments to the UCMJ.

Congress can now turn to Ramos and Ortiz as principled justifications for a

belief that any distinction made between the Sixth Amendment right to an impar-

tial jury (which service members do not have) and the statutory right to an

impartial panel (which service members do have) is a distinction without a differ-

ence when it comes to unanimity of guilty verdicts.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

I. A “TOTALLY DIFFERENT SYSTEM OF JURISPRUDENCE”?. . . . . . . . . . . . . 132

II. RISING CONTRADICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

III. JUDICIAL DEFERENCE TO MILITARY DISTINCTIVENESS: PLACING THE

EMPHASIS ON “MILITARY” IN MILITARY JUSTICE . . . . . . . . . . . . . . . . . 142

A. A Short History of the Military’s Panel Member Deliberation

Rule . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

B. Ex Parte Quirin and Ex Parte Milligan Military Commission

Dicta Became Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

C. The Loose Logic of Ex Parte Milligan . . . . . . . . . . . . . . . . . . 153

D. Parker v. Levy and the Court’s Validation of the Military

Necessity Rationale . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

E. Middendorf’s Due Process Balancing Test and Weiss’s

Standard of Deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

IV. THE CHANGING CHARACTER OF COURTS-MARTIAL: PLACING THE EMPHASIS

ON “JUSTICE” IN MILITARY JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . 162

A. Ortiz and the “Judicial Character” of Courts-Martial . . . . . . 162

B. Does Ortiz Imply Article III and Sixth Amendment Arguments

are No Longer Valid? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

C. Ramos and a Unanimous Panel “Superior to All Suspicion”. . 167

D. Panel Members v. Jurors . .. . . . . . . . . . . . . . . . . . . . . . . . . . 171

E. Article 36, UCMJ, and the “so far as is practicable” Standard

for Courts-Martial Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

128 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:127

INTRODUCTION

Fifty years ago, an argument was made to better align military criminal trials—

courts-martial—with civilian legal requirements by abolishing non-unanimous

guilty verdicts.

1

Criticizing the way in which the military had, to that point, eluded

evolving social and judicial conceptions of fundamental fairness, the scholar

wrote: “[T]he stakes in the matter are far too important to be won or lost by argu-

ments or concepts that have become outmoded.”

2

His argument never persuaded

Congress, or the United States Supreme Court, to intervene in the case of courts-

martial verdicts, leaving military justice an extreme outlier on the American judi-

cial due-process graph.

Yet, when that argument was made in the early 1970s, the Supreme Court had

not addressed whether a unanimous jury was to be incorporated against the States

by the Fourteenth Amendment. Moreover, the Court was—at that time—of the

view that the military’s legal system was necessarily “separate” and “cannot be

equated” with civilian criminal justice.

3

Neither interpretation is still maintained

by the Court; neither the Executive nor the Legislative branches—both of which

assume various responsibilities for managing military justice—can articulate a rea-

sonable justification for retaining non-unanimous voting on a finding of guilty.

With the Court’s recent jury voting decision in Ramos v. Louisiana

4

and the

Court’s recent description of the “purpose” of military law and its function as anal-

ogous to state criminal codes in Ortiz v. United States,

5

the time is right for

Congress to reconsider its piecemeal, but largely deferential, approach to this key

element of an American criminal trial—whether called a “court-martial” or not.

The “arguments and concepts” underlying this rule have not aged well; they were

“outmoded” half-a-century ago,

6

but now their obsolescence is thoroughly incon-

sistent with both the modern practice of military justice and how the Supreme

Court has interpreted the unanimity requirement.

1. See generally Murl A. Larkin, Should the Military Less-than-Unanimous Verdict of Guilt Be Retained?, 22

HASTINGS L.J. 237 (1971). Larkin, the architect of the argument, was then a law professor but had previously

served as a Navy captain and Assistant Judge Advocate General of the Navy. Id. at 237.

2. Id. at 258.

3. See Parker v. Levy, 417 U.S. 733, 743 (1974) (“This Court has long recognized that the military is, by

necessity, a specialized society.”); Orloff v. Willoughby, 345 U.S. 83, 94 (1953) (“The military constitutes a

specialized community governed by a separate discipline from that of the civilian.”); United States ex rel. Toth v.

Quarles, 350 U.S. 11, 17 (1955) (“[M]ilitary tribunals have not been and probably can never be constituted in

such way that they have the same kind of qualifications that the Constitution has deemed essential to fair trials of

civilians in federal courts.”). The first instance of the Court remarking on the “separate” community theory of

military criminal jurisdiction appears to be Carter v. McClaughry, 183 U.S. 365 (1902). Carter addressed the

president’s power to review and, at his discretion, approve the court-martial findings and sentence of dismissal of

an officer; and affirmed the lower court’s discharge of the petitioner’s writ of habeas corpus, challenging the

validity of his sentence. 183 U.S. at 386–390, 401.

4. 140 S. Ct. 1390 (2020).

5. 138 S. Ct. 2165 (2018).

6. Larkin, supra note 1, at 258.

2023] NON -UNANIMOUS (COURT-MARTIAL) GUILTY VERDICTS 129