Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: In the decision that precipitated the “unanimous verdict” issue here, Ramos v. Louisiana, 140 S. Ct. 1390 (2020), NACDL (among others) filed an amicus brief. NACDL’s interest in this issue continues because members of our Armed Forces tried by courts-martial under the Uniform Code of Military Justice [UCMJ] are not second-class citizens and do not forfeit their Fifth or Sixth Amendment rights to a unanimous verdict upon donning a military uniform. Pursuant to CAAF Rule 26(b), our amicus curiae brief “bring[s] relevant matter to the attention of the Court not already brought to its attention by the parties...” NACDL’s approach is different regarding the substantive issue, i.e., does the Sixth Amendment’s guarantee of a unanimous verdict in a criminal case, apply to noncapital courts-martial for serious offenses? Alternatively, does the Fifth Amendment’s Due Process Clause require unanimity? Our amicus brief does not duplicate Appellant’s arguments. NACDL takes a different path in arriving at the same conclusion–non-unanimous verdicts in noncapital courts-martial violate the Constitution. NACDL’s position is that Congress, when enacting Article 52(a)(3), UCMJ, provided for non-unanimous verdicts–as in Ramos–by “the concurrence of at least three-fourths of the members present when the vote is taken” –which contravenes what the Constitution commands, viz., a unanimous verdict. Article 52(a)(3), UCMJ, is therefore unconstitutional on its face.

Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: NACDL’s amicus brief argues that Article 52(a)(3) of the Uniform Code of Military Justice, 10 U.S.C. § 852(a)(3), which permits nonunanimous verdicts by only a three-fourths majority in non-capital courts-martial involving serious offenses, is unconstitutional under Ramos v. Louisiana.  Courts-martial have been considered “judicial” for almost 135 years.  The UCMJ contemplates that the accused must be given a fair trial, and courts have recognized that the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards unless conditions peculiar to military life require a different rule.  The Sixth Amendment has already been extensively incorporated into our military justice system.  With the exception of unanimous verdicts, servicemembers facing a court-martial for serious offenses receive the core panoply of constitutional trial rights, and the military justice system is none the worse-for-wear as a result.  Contrary to the lower court’s assertion, non-unanimity promotes unlawful command influence, rather than preventing it.  Although Congressional powers are necessarily broad in the area of military affairs, they are not absolute or unlimited.  Whether found under the Due Process Clause or, as Ramos holds, under the Sixth Amendment’s Impartial Jury Clause, the right to a unanimous verdict in a criminal prosecution is constitutionally mandated.  It is the Constitution that controls on this issue, not a provision within the UCMJ.