The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Unanimous verdicts at court-martial are not currently required by law. Under UCMJ, a guilty verdict in a general court-martial, which is the most serious type of court-martial, can be reached by a two-thirds majority of the members of the panel. This means that a defendant can be convicted of a crime even if one-third of the panel members do not believe that they are guilty.

However, there is a growing movement to require unanimous verdicts in courts-martial. In 2023, the House of Representatives passed a bill that would have required unanimous verdicts in courts-martial. However, the bill was not passed by the Senate.

There are several arguments in favor of requiring unanimous verdicts in courts-martial. One argument is that it would protect the rights of service members and ensure that they are not convicted of a crime unless all members of the jury agree that they are guilty. Another argument is that it would promote fairness and accuracy in the military justice system.

There are also some arguments against requiring unanimous verdicts in courts-martial. One argument is that it would make it more difficult to convict service members of crimes. Another argument is that it would be more difficult to reach a verdict in some cases, which could lead to hung juries. If the principle of innocent until proven guilty beyond a reasonable doubt is to be maintained, then appropriate “difficulties” in getting a conviction ought to be followed.

The debate over unanimous verdicts in courts-martial is likely to continue. It is an important issue that has implications for the rights of service members and the fairness of the military justice system. Unfortunately, there is betting that the Supreme Court will give deference to Congress as it usually does when Congress acts under its “Make Rules” authority to govern military discipline and justice.

Congress is subject to the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. But in determining what process is due, courts “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, §8.”

In the meantime, Congress has been paying some attention to the issue, as noted by the bloggers at Save Our Heroes.

Rebecca Kheel reported that Court-Martial Convictions Would Need Unanimous Jury Verdicts Under a Measure Added to Defense Bill. Military.com, 17 July 2023. Indications are that proposal won’t be adopted. UCMJ, court-martial, air force court, navy court, army court

AMERICAN MILITARY JUSTICE: RETAINING THE COMMANDER’S AUTHORITY TO ENFORCE DISCIPLINE AND JUSTICE.

[https://www.court-martial-ucmj.com/white-paper-on-military-justice-reforms-2020-w-app/]

In summary, [they] believe that:

• Commanders play a critical and necessary role in the American military justice system; • Transferring prosecutorial discretion from commanders to judge advocates will undermine commanders’ authority to maintain good order and discipline; • Transferring the decision to prosecute and refer charges to a court-martial will create unintended consequences; • Changing the American military justice system to emulate the systems of other countries is not warranted or advisable. Comparison of sexual assault prosecution rates of the United States military with four United States allies in 2013 (see Appendix) and with three allies more recently do not support adopting their systems of removal of command responsibility for prosecuting serious sex crimes; • The Proposed Amendments Will Adversely Affect the Delicate Balance Between Justice and Discipline; • Recent Studies of Command Decisions to Prosecute Sexual Assaults Demonstrate that the Current System is Working; • Congress Should Await Implementation of the Reforms Outlined in the Military Justice Act of 2016 for Oversight and Accountability; and • Congress should reaffirm the role of the commander to enforce good order and discipline.

• A draft Executive Order indicating an effective date for the MJA of January 1, 2019.
• Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed. Of note, are changes to regulate the sealing of all or parts of the record, changes to MRE 311, which adds, “that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment[.]” And,

(a) Paragraph 45c, Article 120c—Other sexual misconduct, subsections b-f, are amended[.]

• Annex 2 to the draft Executive Order, making changes incorporating the MJA. Annex 2 is 619 pages and reproduces Parts I-V of the MCM in their entirety.
• A most interesting item includes an Appendix 2.1 (PDF page 605) containing non-binding disposition guidance for charges.
• There is also an Appendix 12A (PDF page 611) listing Presidentially-prescribed lesser included offenses, which may help to address some of the fairly recent litigation about what is or isn’t a lesser included offense.

Theme: Forging Best Practices for Innocence Reform Why: Because our criminal justice system needs to apply evidence-based best practices in order to stop wrongful convictions and restore the presumption of innocence

Where: Crowne Plaza, Washington National Airport (Arrive a couple days early or stay for the long weekend, you’ll get to take advantage of the Summit’s deeply discounted room rates. Advance look HERE.) When: June 12-13, Friday morning through Saturday afternoon

What: Keynote presentations, panel discussions, workshops, networking opportunities, and a Friday evening banquet. Plus, limitless opportunities to enjoy the sights of our nation’s Capitol! Registration opens: February 2, 2015

The Center for Prosecutorial Integrity will have its Second Innocence Summit.

Proceedings will take place at the Crowne Plaza Hotel, Washington National Airport, 1480 Crystal City Drive, Arlington, VA 22202.

I have referred to or commented on the CPI work from time to time, in particular their findings that failure to provide Brady material prior to trial is a leading reason for wrongful convictions. They report:

Fact #4: Many different types of ethical violations have been reported. The following are the most common types of ethical violations committed by prosecutors:

• Failure to disclose exculpatory evidence (Brady violation)
• Use of inadmissible or false evidence/lack of candor to the court
• Plea bargain offense
• Inflammatory statements/witness harassment
• Mischaracterizing the evidence
• Vouching

Center for Prosecutor Integrity. Registry of Prosecutorial Misconduct.http://www.prosecutorintegrity.org/registry/graph/numberbymisconducttype/

Registration will begin in February, and the actual schedule is yet to be announced. So check back here or at their website for further details. Or you can sign up for their regular email updates. They do appear to have blocked off rooms at the hotel at deeply discounted room rates.

In response to the issue of prosecutorial error, a number of jurisdictions have established Prosecutorial Integrity Units. Dare the TJAGs establish this as they did the SVC program?