The U.S. Supreme Court held, in Ballew v. Georgia, that the constitutional right to a jury trial requires a jury consisting of no fewer than six persons for non-petty offenses. Does this standard apply in military courts-martial? Not according to the U.S. Court of Appeals for the D.C. Circuit.
This morning, the the D.C. Circuit rejected Kevin Sanford’s claim that his conviction by a military court-martial consisting of fewer than six persons violated his due process rights. Judge Rogers opinion for the court summarizes the case as follows:
In challenging his conviction by a military court-martial consisting of less than six persons, Kevin Sanford invites this court to hold that his rights under the Due Process Clause of the Fifth Amendment were violated. He relies
on the Supreme Court’s announcement of a constitutional minimum six-person jury for the trial of civilian, non-petty offenses in Ballew v. Georgia, 435 U.S. 223 (1978), and suggests it is the government’s burden to show that his due process rights were not violated. Because Ballew was grounded in the Sixth Amendment right to a jury trial, however, Sanford is actually seeking a new due process right to a court-martial panel of a minimum size. Sanford’s focus on rebutting the government’s assertions thus fails to engage the appropriate inquiry under Weiss v. United States, 510 U.S. 163 (1994), which is “whether the factors militating in favor of [the proposed rule] are so extraordinarily weighty as to overcome the balance struck by Congress.” . . . Because Sanford failed to
engage this standard before the military courts, their resolution of his claim suffered from no fundamental defect and was properly upheld by the district court.The Supreme Court’s conclusion regarding minimum jury size in the civilian system was based on empirical studies. . . . Sanford presented no similar empirical evidence regarding the military justice system, which
has features to ensure accurate fact finding not found in the civilian justice system. Rather, Sanford contends that Ballew reflects a conclusion about a fundamental right that is required by due process under both the Fifth and Fourteenth Amendments. Still he fails to show that the empirical data underlying Ballew’s holding applies with equal force to the military justice system, which is based on Congress’ balancing of interests, some of which are unique to the military. Doubtless it is fundamental that there be accurate fact finding under the justice system Congress established in the Uniform Code of Military Justice, . . . but Sanford fails to show that the design of the military system is so incompatible with that principle as to violate due process. Accordingly, we affirm the dismissal of his complaint.
mikeyes says:
Well, is it fewer or less?
Quote
November 13, 2009, 10:46 ammljucmj says:
And the five (general court) or three (special court) are only required to reach a finding of guilty by two-thirds secret written ballot. Except in death cases where at 12 is required voting unanimously.
Cheers, court-martial.com
Quote
November 13, 2009, 10:48 amzuch says:
Well, if Ex parte Quirin is still good law, U.S. soldiers in courts martial are not afforded the same rights (to jury trial, etc.) that are constitutionally required of Article III court proceedings (that such wasn’t available to U.S. soldiers in courts martial was the reason for denying such protections as the Quirin petitioners were seeking).
Cheers,
Quote
November 13, 2009, 11:05 amJohn says:
This guy was not court martialed in the wilds of Aghanistan. He was court martialed at Camp Pendelton. There is really no excuse for not providing him with a six person jury. The fact that he wasn’t is a reflection of laziness on the part of the Marine Corps rather than military necessity.
We insist on larger juries in civilian trials because of the reasonable assumption that a larger jury is less likely to commit an injustice. Absent true military necessity, soldiers and marines should get the same benefit. While technicaly this case is probably right, the military ought to as a matter of fairness and policy insist on a six person jury wherever possible.
Quote
November 13, 2009, 11:15 amDave N says:
There are certain rights we take for granted, but which are not absolute. Many attorneys, for example, would be surprised that various courts of appeal have held that there is no Constitutional right to counsel in tribal courts, even if the defendant faces incarceration.
The rationale behind these opinions goes to the quasi-sovereign status that Indian tribes historically have claimed.
I would imagine that the military, with a history of courts martial with fewer than 6 members, would be similarly immune from a grafting of the civilian rules of criminal procedure on the military criminal justice system.
Quote
November 13, 2009, 11:31 amSgtDad says:
OK, will someone tell me how it is that constitutional rights — enumerated constitutional rights, no less — are only rights if their utility can be backed by “empirical studies?” My recollection of Ballew is that the empirical studies were not the basis for the holding, only an observation that empirical studies had proved the accuracy of the Framers’ insight.
And if “empirical studies” are the basis for how we try cases, take a look at the science behind hindsight bias. Common law trials are a pathological excercise in the application of hindsight bias. This is due process?
Quote
November 13, 2009, 11:54 amMark Field says:
You might want to add the word “Jury” to your headline after “Court-Martial”. Otherwise it’s ambiguous — looks like they have to court-martial at least 6 defendants at a time.
Quote
November 13, 2009, 12:09 pmBama 1L says:
I was utterly confused by the headline.
SgtDad, I don’t see where the enumerated right to jury trial says anything about the number of jurors.
Quote
November 13, 2009, 12:16 pmgasman says:
IANAL. Let’s assume for the moment that the Wikipedia page for due process has an interested lawyer type among its editors, and that the definition above is about right. Then due process is what the law or process making division says it is. In civilian law this is the legislature, and in the military some other arm. The only role for judge (and a judgement) is to determine whether the process due was met, not whether the judge felt like more jurors would be a good thing by itself.
Quote
November 13, 2009, 12:24 pmSoronel Haetir says:
A more interesting questin, I think, would be in the case of someone who did not volunteer to be subject to military tribunals. I’m thinking both conscripts and any terrorism suspects tried in military settings.
Quote
November 13, 2009, 12:32 pmPersonFromPorlock says:
gasman, due process is, by a rebuttable presumption, any official process. The ‘rebuttable’ part of that depends on whether your money holds out.
Quote
November 13, 2009, 12:34 pmwfjag says:
They don’t have “juries” in Courts-martial. It’s called a panel — because, among other reasons, it isn’t a “jury.” A Court-Martial is an Article I proceeding, not an Article III proceeding.
This comment also shows ignorance of the subject matter. Panel members are not a jury pool. The Court-Martial Convening Authority assigns people to the pool by order (usually a standing order). Everyone on the order shows up. Those not struck based on a challenge for cause of a preemptory challenge sits on the panel that hears the case. Smart defense counsel play the numbers game. In a Special Court-Martial, like the one that heard Sergeant Sanford’s case, for conviction, not less than 2/3’s of the panel must vote to convict. It’s probable that there were 6 Marines on the original panel. The Defense Counsel would use a preemptory challenge on one, leaving 5 — so that the government would have to get 4 of 5 (80%) voting for guilty in order to secure a conviction (since 3 or 5 is only 60%, which is less than 2/3s). The government would then challenge one, so that there were 4 members remaining on the panel — so the government would need a vote of 3 of 4 (75%).
Quote
November 13, 2009, 12:43 pmMark Field says:
This is not the end of the inquiry because of separation of powers concerns. Simplfying, courts insist that their proceedings be “fundamentally fair”; if the legislature could provide otherwise, then the courts would cease to operate independently and would potentially become merely the vehicle for abuse of power by the legislature/executive.
Another way to look at it is that the process due “by law” includes the process courts insist on; that’s a form of law.
In that case, the word “Panel” should be added to the headline.
Quote
November 13, 2009, 1:21 pmThe Watcher says:
The watcher recalls that military court martial panels are only made up from a list compiled by commanding officers. They insure that only those officers and very senior non-commissioned officers who are yes men are allowed on the panels.
Quote
November 13, 2009, 2:02 pmJohn says:
“This comment also shows ignorance of the subject matter. Panel members are not a jury pool. The Court-Martial Convening Authority assigns people to the pool by order (usually a standing order). Everyone on the order shows up. Those not struck based on a challenge for cause of a preemptory challenge sits on the panel that hears the case. Smart defense counsel play the numbers game. In a Special Court-Martial, like the one that heard Sergeant Sanford’s case, for conviction, not less than 2/3’s of the panel must vote to convict. It’s probable that there were 6 Marines on the original panel. The Defense Counsel would use a preemptory challenge on one, leaving 5 — so that the government would have to get 4 of 5 (80%) voting for guilty in order to secure a conviction (since 3 or 5 is only 60%, which is less than 2/3s). The government would then challenge one, so that there were 4 members remaining on the panel — so the government would need a vote of 3 of 4 (75%).”
First, I am a former JAG and veteran of around 80 Courts-Martail. In future, be careful who you call out for ignorance. You appear to know just enough about the military justice system to be dangerous. You give a correct description of the process. What you fail to mention is that there is a standing order signed by the convening authority periodicly that randomly assigns a large number of officer’s and enlisted to panel duty. You start with a certain number of panel members. If enough of them get struck to put you below the minimum nuber of panel members it is known as “busting the panel”. In that case, you just call a whole new set off of the standing order or if you can’t find enough get the convening authority to appoint some new members and start again. The Marine Corps was lazy not to do this. As soon as they went below six, they should have called more people off of the standing list. That they didn’t shows that they just didn’t want to go to the bother of rescheduling the trial and bringing in new panel members.
It is okay that you don’t fully understand how the system works. I am happy to tell you how it does. But, you really should refrain from insulting other people when you really don’t understand the process yourself.
Quote
November 13, 2009, 2:17 pmOrder of the Coif says:
I was a military defense counsel for four years in the 1970s. The Court martial system is wonderful for the actually innocent and very much better than the civilian system for those who “look very guilty.” Indeed, given the generally FAIR sentences actually imposed by court panels (not a hardened, indifferent judge) after a penalty mini-trial, they are better for the guilty too.
I would rather be tried by a court martial panel of intelligent, educated persons who see service on the panel as an important part their job and seek to do it well. A panel which takes its oath seriously and can (and WILL) distinguish between “he did it” and the government has “proven beyond a reasonable doubt” that he did it. A panel whose members are willing to speak up and persuade the others that the defendant is not guilty (more often than you think) or guilty.
Convening authorities are very much aware of the trap of “command influence” and, in my humble experience avoid it like a plague. Besides, where else can the DC read every panel member’s complete personnel record looking for bases to challenge the member.
If I had a choice, I’d take trial by court martial every time.
P. S. There’s seldom/never a Brady problem because the defense gets everything (except the trial counsel’s notes) in the prosecutor’s files. Usually at the same time.
P. P. S. Another UNIQUE way to keep the government honest is the ability of “any person subject to the Code” to file charges. I did it once against a military police detective for altering evidence (my client’s so-called confession). He didn’t know that photocopies had been made before he made the crucial additions and signed it as a witness (in the only blue ink on the document!).
Quote
November 13, 2009, 2:45 pmBama 1L says:
I’m glad that got clarified, because I was wondering how on earth the military courts–about which I have heard entirely good things from lawyers who have worked in the military and civilian systems–could be so easily manipulable.
Quote
November 13, 2009, 2:46 pmJohn says:
Oder of the Coif,
The other good thing about the military justice system is that since most witnesses are military members they have to talk to the defense. I think most people would be stunned if they knew that witnesses in a civilian criminal trial are under no obligation to talk to defense attornies before trial. Yes, the government has to turn over any statements they made, but the witnesses themselves don’t have to talk to the defense if they don’t want to (and they usually don’t). Civilian trials really are often trials by ambush.
Quote
November 13, 2009, 3:12 pmOrder of the Coif says:
Absolutely correct. You just call their unit orderly room and have them sent over to your office. I tape recorded every interview. Amazing how that kept the military police testimony from getting better with age.
Quote
November 13, 2009, 4:54 pmohwilleke says:
I’m not a great fan of originalism, but from an originalist perspective, courts-martial today are far more protective of defendant’s rights (mostly due to reforms instituted in the wake of World War II when most soldiers were draftees), than they were before then.
For example, IIRC, pre-World War II, there was not a right to have a court-martial in a serious case presided over by a legally trained military judge. The right to appeal to civilian courts at all by any means other than a writ of habeas corpus lodged with the U.S. Supreme Court is even more recent.
I agree with the commentors who have noted that courts-martial panels are not juries, and that there is not right to a trial by jury in the military justice system (and never has been).
I also agree that empirically that courts-martial tend to be rather lenient in their sentencing (which is generally by the panel rather than the judge as in most civilian criminal courts), compared to civillian criminal courts. For example, not a single soldier was sentenced to death for crimes committed in either the Korean or the Vietnam wars, despite the fact that some heinous crimes were committed there.
For example:
Similarly, “During the latter part of the Vietnam War, there were at least ten major instances of mutiny.”
Military justice would probably authorize the death penalty in any fragging and for the leader of any major mutiny in a war zone. But, this isn’t what happened.
From a policy perspective, one reason for lower levels of due process in military justice setting is to encourage discipline to be metted out on the merits, rather than passive-aggressively without any due process. A commanding officer who wants to punish a subordinate during wartime (even for discipline issues committed while in the United States) can wait until his unit is deployed in a war zone and then select the subordinate to be punished to serve on the most dangerous, even near suicidal, missions with impunity. In the context of that kind of power, the process has to be one that superiors feel comfortable using in order to work.
Quote
November 13, 2009, 5:23 pmwfjag says:
I can only assume that includes guilty pleas and Summary Court Courts-Martial. As Trial Counsel and Defense Counsel, I’ve tried 80 contested GCMs and SPCMs.
I’m very familiar with busting panels. However, apparently unlike you, I paid attention to the wording of Article 29, UCMJ. I also paid attention to United States v Greene, 20 U.S.C.M.A. 232 (CMA 1970) (which is still good law):
In order for the convening authority to delegate additional members to a General Court-Martial panel, the panel must be “reduced below five members”. Art. 29(b),UCMJ. For a Special Court-Martial, it must be “reduced below three members”. Until that happens, the convening authority has no authority to start adding additional panel members, and your “standing panel” idea causes an improperly convened panel — and, assuming that the Defense Counsel preserved the objection — a reversal. Accordingly, I have to conclude that in your 80 Courts-Martials, either you didn’t run into a D.C. who knew what Art. 29, UCMJ, actually said, or, as D.C., you failed to preserve your client’s rights with the appropriate objection.
Quote
November 13, 2009, 6:04 pmHerb Spencer says:
This seems as good a place as any to raise a nagging concern I have, first in light of the Senate’s authorizing civilian trials for accused terrorists, and now, DOJ’s plan to hold these in the USDC, SD, NY, and elsewhere. I smell a device to chip away at the jurisdiction of military courts and to expand that of the Art. III courts to bounds not envisioned by the Founders nor properly extended by amending the Const. My fear is that this is being used for some ulterior purpose, perhaps to open the door to depriving courts martial of jurisdiction over cases a particular administration deems better suited, in advancing its own interests, for trial in a sympathetic DC instead of a military one, or worse, disestablishing courts martial generally, which, Coif’s wise comments notwithstanding, have always been anathema to the left. What do Obama’s writings say on this? Those of his colleagues at Harvard Law Review? At UC? How hard would it be to show standing to challenge the Admin’s tactics in hopes of undoing them and returning these cases to the military tribunals where they should be tried, and can be so much more efficiently than in any USDC? (See FRCvP 1.) And, should not a truly independent USDCJ exercise his duty to determine whether he has jurisdiction under this scheme before proceeding any further contrary to this long-established jurisdictional divide?
Quote
November 13, 2009, 6:34 pmJohn says:
“Accordingly, I have to conclude that in your 80 Courts-Martials, either you didn’t run into a D.C. who knew what Art. 29, UCMJ, actually said, or, as D.C., you failed to preserve your client’s rights with the appropriate objection.”
You do not have a clue what you are talking about. You never call the entire panel for a jury trial. You call some of the people who are on the list but not all of them. You almost always have other members who are on the list but for whatever reason don’t show up to this particular trial. I was a trial counsel for two years. About every six months we went to the convening authority and got a new court marshal convening order which put about 20 or so officers and another 20 or so enlisted as eligible for panel duty. You don’t call all 40 of them. You just call 10 or so and if you bust the panel, you call a few more. That is what the Marine Corps failed to do in this case. Again, you know just enough to be dangerous about this stuff.
I am sorry but smugness doesn’t make up for experience and knowledge.
Quote
November 13, 2009, 10:19 pmBruce Hayden says:
If there is a problem with the number on a courts martial, what about war crimes tribunals? Right after the end of WWII, my grandfather spent a year or so sitting on one for a Nazi concentration camp. It consisted of one Brigadier General, and two full Colonels. And they did hang some of the people working at the camp, and gave prison terms to many more. Of course, that was 1946, and not 2009.
Quote
November 13, 2009, 10:27 pmJed says:
I suspect you may be talking past each other due to differences in the way the services do things.
The current practice in the Air Force is along the lines of what wfjag states. A list is compiled of those who are available to sit on the panel. This list is sent to the convening authority, who chooses approx. 6–8 (SPCM) or 12–14 (GCM). These are then detailed as the panel. Every detailed member attends, and if the panel is busted, counsel can’t just call more members because there are no more detailed. In the event of a busted panel, a new list of available members is sent to the CA so he can detail a new panel. There IS a standing list of available members, but there is not a standing list of detailed members.
Hope this helps.
Quote
November 14, 2009, 7:25 amOrder of the Coif says:
That’s been AF practice since the 1960’s at least. The AF has smaller bases and about 1/10 the number of CM that the other services have. One year, I was (I believe) involved in 10% of the AF’s GCM’s. In my experience, each panel was a one-time deal (i.e., convened solely for the CM of Airman George Jones). We never had a busted panel occur.
Quote
November 14, 2009, 10:25 amreadery says:
Soldiers specifically have no right to a jury trial, And for matters that don’t have a right to a jury trial, a single judge has been considered a fair tribunal compliant with due Process; it’s only the right to a jury trial that implies a panel with a minimum number of members.
My suggestion would be to lobby Congress to amend the Military Code of Justice, or the states to convene a convention to amend the constitution.
I wouldn’t hold my breath.
Quote
November 14, 2009, 9:16 pmOrder of the Coif says:
Everyone seems to have forgotten that Article 1, Section 8, clause 13 provides The Congress with plenary power “To make rules for the government and regulation of the land and naval forces;”.
Quote
November 14, 2009, 11:11 pm