Do troops have right to unanimous verdicts? Supreme Court could weigh in

by Tommy Grant

An airman is asking the Supreme Court to consider whether service members have the right to unanimous jury verdicts in general courts-martial, a right guaranteed to defendants in civilian criminal trials.

The top military court, the Court of Appeals for the Armed Forces, decided in a 5-0 ruling in June that service members aren’t entitled to unanimous verdicts, confirming that a service member can be convicted and sentenced to prison time even if up to a quarter of the jury believes them to be not guilty.

Air Force Master Sgt. Anthony Anderson’s petition, filed on Monday, could open the door for the nation’s highest court to overturn centuries-long precedent in the military legal system.

“The petition presents to the court an important issue of constitutional law that affects millions of Americans, and we’re hopeful that the court will agree to review the decision of the Court of Appeals for the Armed Forces,” Scott Gant of the law firm Boies Schiller Flexner, which is representing Anderson, told Military Times on Wednesday.

A general court-martial in 2020 convicted Anderson of two specifications of attempted sexual abuse of a child for sending lewd messages and photos to “Sara,” a fake 13-year-old girl created by the Air Force Office of Special Investigations, on the anonymous messaging app Whisper. Anderson separately sent messages to a real 15-year-old girl asking her about sex, for which he wasn’t charged, according to a lower-court judge’s summary of the case.

Before his trial, Anderson asked the military judge to require a unanimous verdict or at least make the jury divulge whether it had reached a unanimous verdict, according to Anderson’s petition for the Supreme Court to take up his case. The judge declined.

Anderson unsuccessfully appealed his case before the Air Force Court of Criminal Appeals and the Court of Appeals for the Armed Forces.

In the civilian legal system, when even one juror dissents from the other jurors’ finding, the defendant gets a new trial. Not so in the military, explained Don King, a former Navy lawyer who now practices at King Military Law.

An accused service member who goes before a general court-martial receives a verdict if three-quarters of the jury, made up of six to eight members, are in agreement.

“The idea is, ‘We don’t have time for mistrials,’” King said.

There’s also the worry that a requirement for unanimous verdicts could lead to higher-ranking jury members putting pressure on their lower-ranking peers in the deliberation room. In King’s experience, though, military jury members mostly abide by orders not to let rank influence their decisions.

Personally, King said, he finds it unfair that service members don’t have the right to unanimous verdicts.

Anderson’s petition to the Supreme Court relies on the U.S. Constitution’s Sixth Amendment, which provides the right to an impartial jury trial, and Fifth Amendment, which provides the rights to due process and equal protection.

“The unanimity requirement is crucial for ensuring that a guilty verdict results only from a fair proceeding,” Anderson argues in the petition.

But “the Supreme Court has repeatedly relied on the principle that courts-martial are fundamentally different from civilian trials,” the Court of Appeals for the Armed Forces wrote in its opinion. Supreme Court precedent says the Sixth Amendment doesn’t apply in the military system, the opinion notes.

Nonunanimous verdicts have been a feature of the American military justice system since the country’s founding, the Court of Appeals for the Armed Forces wrote.

Congress may also opt to change that. As part of the House version of the 2024 defense policy bill, lawmakers are pushing the Pentagon to provide more information on how it would implement unanimous verdicts, and the associated costs, by the end of March 2024.

Both the House and Senate have passed separate versions of the bill, but the two chambers still must negotiate on the differences before sending a final version to the president’s desk.

Don Christensen, a retired Air Force colonel who served as the service’s chief prosecutor, previously told Military Times the lack of a guarantee to unanimous verdicts erodes confidence in the military justice system.

“Unanimous verdict is the gold standard of justice,” Christensen said. “The military is kind of stuck in 1775 in the way they view this.”

It’s far from certain that the Supreme Court will agree to take the case. Each year, the court hears oral argument in only about 80 cases, despite receiving 7,000 to 8,000 petitions, according to SCOTUSblog. Those cases rarely involve matters of military law.

King said he expects that if the justices grant certiorari and decide to stick to precedent, they will defer to Congress, maintaining the rule that service members aren’t entitled to nonunanimous verdicts.

But he said, “All bets are off with SCOTUS nowadays.”

The solicitor general’s office, the Justice Department component that represents the federal government in lawsuits, hasn’t yet filed a response brief. Justice Department spokesman Terrence Clark declined to comment Wednesday.

Irene Loewenson is a staff reporter for Marine Corps Times. She joined Military Times as an editorial fellow in August 2022. She is a graduate of Williams College, where she was the editor-in-chief of the student newspaper.

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