Guest Post: Don Rehkopf on “Courts-Martial Verdicts: Some Thoughts on Unanimity”

Today’s post is a return visit by Lawfire®contributor Don Rehkopf.  As you may recall from his previous post, Don has practiced military law for more than 45 years as an active duty officer, reservist, and civilian lawyer (check out his awesome bio below).  He is currently involved in litigation* which is grappling with a fascinating question: are military courts, which are created by statute via Congress’ Article I powers, obliged to have unanimous verdicts as civilian courts are?  

It’s a more complicated issue than it may seem, so you may want to review some additional information about it found here and here.

Don briefly presents his perspective on this important issue (his full brief is found here).  Beyond evaluating the merits of the issue, it is also interesting to see how a very experienced litigator analyzes and advocates an issue.  Take a look!

COURTS-MARTIAL VERDICTS: Some Thoughts on Unanimity

Donald G. Rehkopf, Jr., Lt Col, USAFR (ret)

Since the Supreme Court decided Ramos v. Louisiana, 140 S.Ct. 1390 (2020), the only jurisdiction in the United States where one accused of a serious criminal (but non-capital) offense can be convicted by a non-unanimous verdict, is in the U.S. military pursuant to the Uniform Code of Military Justice. Specifically, Article 52(a)(3), UCMJ, 10 U.S.C. § 852(a)(3), provides that only the vote of three-fourths of the eight member panel are necessary to convict servicemembers charged with, e.g., rape, robbery, or non-capital murder. Even other Article I, U.S. Const. courts such as Territorial Courts or the District of Columbia courts exercising criminal jurisdiction, require unanimous verdicts.

As might be expected, astute defense counsel–military and civilian–began challenging this non-unanimity process and at present there are a number of such cases pending in the various Service Courts of Criminal Appeals [CCA]. Four different approaches to the unanimity issue have surfaced during this litigation under both Fifth and Sixth Amendment foundations. Briefly, they are as follows:

Fifth Amendment:

    1. The Due Process Clause requires a unanimous verdict of guilty to meet the prosecution’s burden of proof beyond a reasonable doubt;
    1. The Equal Protection principles incorporated into the Fifth Amendment [see Bolling v. Sharpe, 347 U.S. 497 (1954)] requires unanimity given that every other State and Federal criminal jurisdiction requires it in order to secure a criminal conviction for “serious” offenses [versus petty offenses–see Lewis v. United States, 518 U.S. 322, 323-34 (1996)(“The Sixth Amendment’s guarantee of the right to a jury trial does not extend to petty offenses . . . .”)];

Sixth Amendment:

    1. The Amendment’s “impartial” jury trial right requires unanimity in light of Ramos; and
    1. Article 52(a)(3), UCMJ, 10 U.S.C. § 852(a)(3), is facially unconstitutional in light of Ramos.

This short essay primarily addresses the Equal Protection argument–not because I believe that such an approach is either the best or correct, but because a military trial judge granted pretrial relief to an accused on this basis. The government sought a stay and took an interlocutory appeal to the Army CCA [ACCA], where the case is pending, styled United States v. Pritchard (Respondent) and LTC Andrew Dial (Real Party in Interest) Dkt. # ARMY MISC 20220001 [hereinafter “Dial”].1 That, at least for the moment, appears to be the lead case on the unanimity issue.

In Dial the Military Judge granted a defense motion seeking an instruction to the court Members that their verdict must be unanimous. Relief was granted pursuant to the Equal Protection argument noted above. The premise here is that the Equal Protection argument–from a constitutional law perspective–is probably the least likely of the four arguments noted above to be adopted by the Supreme Court. Only if SCOTUS (and the issue can only be resolved by them) repudiates its long-standing “separate society” doctrine,2 which is unlikely in my opinion, could the military judge’s decision in Dial be upheld under equal protection principles. Not that the equal protection argument is without merit, but rather, the separate society concept is simply too deeply entrenched in the Court’s jurisprudence to expect it to now reject it.

In our Dial amicus brief, NACDL argues that the equal protection argument need not come into play if one focuses on the narrower issue, viz., is Article 52(a)(3), UCMJ, unconstitutional on its face under the Sixth Amendment’s impartiality requirement after Ramos? Considerable confusion has been injected into this litigation by the government’s attempts to reframe the issue as a Sixth Amendment, “jury trial” issue. That is not the issue–rather, the precise question is much narrower. Analysis must begin with the Court’s holding in Weiss v. United States, 510 U.S. 163, 176 (1994), which held, “Congress, of course, is subject to the requirements of the Due Process Clause when  legislating in the area of military affairs . . . .” That then must be juxtaposed with the Court’s decision in Ortiz v. United States, 138 S. Ct. 2165, 2174 (2018), that military courts-martial are “judicial” under the Constitution.

The basic question

From a purely constitutional perspective, the basic question here is, does the subsequently enacted Sixth Amendment, as part of the Bill of Rights, apply to the Make Rules Clause of Article I, § 8, U.S. Const.? If so, in the context of unanimity post-Ramos that should answer the question. If not, the issue is still framed by the Fifth Amendment’s fair trial requirement which, likewise, should produce the same result. The reason being that our servicemembers are not second-class citizens and do not deserve to be treated as such in a courtroom–something that Article 52(a)(3), UCMJ, relegates them to.

John Adams the lead counsel for the British Soldiers in the two so-called “Boston Massacre” trials, would no doubt be appalled to learn that American servicemembers today, charged with the same crimes as his British Soldier clients were, are not entitled to a unanimous verdict. That is especially so with non-capital offenses under the UCMJ, only having eight court members versus 12 in most jurisdictions for serious offenses.

Ramos, as decided, was a Sixth Amendment, impartial jury case, although with a “blending” of Fifth Amendment Due Process fair trial principles in it. It was not an equal protection case and the Supreme Court is unlikely to reverse or restrict its “separate society” precedents. That, hasn’t been true since at least since the All Volunteer Military came into existence. But, as our amicus brief argues, that is irrelevant to the issue. Unanimity in verdicts for serious, non-capital criminal cases after Ramos is mandated and nothing in our legal or constitutional history (much less the language of the Constitution itself) authorizes anything less. Our servicemembers, even when criminally accused of serious offenses, are not sub-constitutional entities. They deserve–indeed, are entitled to, a unanimous verdict before being convicted and deprived of liberty, rank, pay, etc.

The unanimity issue is one that only the Supreme Court can conclusively resolve. But, as NACDL’s amicus brief points out, Dial itself is not necessarily a good vehicle for this issue as there are, e.g., thorny jurisdictional issues. Martinez, has been pending at the AFCCA since July of 2021.3 Regardless of the outcomes, Dial and Martinez present a fascinating glimpse of “law in action.”


    1. * Disclaimer: The author here is lead counsel for amicus curiae, the National Association of Criminal Defense Lawyers [NACDL] in both Dial and Martinez, along with Professor Barbara E. Bergman, Director of Advocacy, University of Arizona James E. Rogers College of Law, filing amicus curiae briefs in both cases on behalf of NACDL. Martinez is an Air Force [AF] case pending on direct appeal at the AFCCA from July of 2021 raising similar unanimity issues, United States v. Martinez, Dkt. # ACM 39973.
    2. See, e.g., Parker v. Levy, 417 U.S. 733 (1974), discussed in greater detail in our amicus brief in Dial.
    3. For reasons not given, the AFCCA denied Martinez’s request for oral argument via his lead counsel, Professor Stephen I. Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.

About the author

Lt. Col. (Ret.) Rehkopf served 5 years on active duty as a judge advocate and 23 years as a Category B, Individual Mobilization Augmentee. He had assignments within the former Strategic Air Command, Pacific Air Forces, the U.S. Air Force Trial Judiciary, Air Mobility Command, and Air Combat Command, and had defense counsel assignments twice. For many years, he served as the co-chair of the National Association of Criminal Defense Lawyers, Military Law Committee and was its liaison to its Amicus Curiae Committee and authored or co-authored numerous amicus curiae briefs at both the U.S. Supreme Court, federal Circuit Courts of Appeal, and the U.S. Court of Appeals for the Armed Forces on military justice issues. He has tried in excess of 250 jury trials during his 45 year legal career.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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