Kevin Carroll

In 2023 an American citizen may be convicted of homicide on a less-than-unanimous verdict, and cannot yet appeal that to the U.S. Supreme Court if they are a member of the armed forces. This problem is exemplified by an appellate case I recently worked on, pro bono.

In 2019, Airman Calvin Cooper was off duty and off base, and sober but speeding, when he had a tragic fatal traffic accident with Angelica Baca, a civilian who was crossing the road outside of a crosswalk.

Albuquerque police investigated the accident, and Bernalillo County prosecutors declined to press charges, but the U.S. Air Force chose to assert jurisdiction.

Relying upon the testimony of local police and New Mexico state traffic laws,[1] in 2021 a military criminal trial — called a general court-martial — convicted Cooper of negligent manslaughter,[2] and sentenced him to five years in prison.[3]

In the military, a defendant may be convicted of manslaughter on a verdict of just three-quarters of the panel's voting members; here, six of eight.[4]

There is no polling of the jury in a military trial, so we do not know how many jurors voted to convict Cooper.

We do know that after the trial, an alternate juror — called a panel member in a military proceeding — who sat through the entire case, but did not participate in deliberations, emailed Cooper's Air Force trial defense counsel.

This master sergeant stated that the verdict was a "grave miscarriage of justice" as he "genuinely believe[d] there was significant reasonable doubt in this case."[5]

Given the alternate member's opinion here, it is quite possible, but unknown, that one or two voting members shared his reasonable doubts.

Cooper may well have been convicted of homicide on a nonunanimous verdict.

How can this be, given the U.S. Supreme Court's decisions in Ramos v. Louisiana,[6] holding that state criminal verdicts must be unanimous and reaffirming that federal criminal verdicts must be as well,[7] and Ortiz v. U.S.,[8] holding that the Supreme Court maintains jurisdiction to review decisions of the Court of Appeals for the Armed Forces, and observing that service members' procedural protections are virtually the same as those given to civilians?[9]

It's because the military courts thus far refuse to accept that Ramos' requirement for unanimous verdicts applies to the armed forces. Either the Supreme Court or Congress must correct this glaring constitutional error affecting the rights of service members.

Ramos

In its 2020 Ramos v. Louisiana decision, the U.S. Supreme Court considered Louisiana and Oregon statutes, explicitly intended at the time of passage to keep minority jurors from preventing the conviction of minority defendants, which allowed nonunanimous verdicts.[10]

Writing for a 6-3 court, Justice Neil Gorsuch relied upon the Sixth Amendment's guarantee of "the right to a speedy and public trial ... by an impartial jury" to invalidate these state laws.[11]

The justice reasoned that at the time of the amendment's adoption in 1791, unanimous verdicts had been required under English and early American law for 400 years, and therefore that "[i]f the term 'trial by an impartial jury' carried any meaning at all" to the founders and framers, "it surely included a requirement as long and widely accepted as unanimity."[12]

Justice Gorsuch further stated that as the Supreme Court "has commented on the Sixth Amendment's unanimity requirement no fewer than 13 times over more than 120 years," there can be no question that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials, as "the Sixth Amendment right to a jury trial is 'fundamental to the American scheme of justice.'"[13]

Ortiz

Two years earlier, in Ortiz v. U.S., the Supreme Court held 7-2 that it "has jurisdiction to review decisions of the [U.S. Court of Appeals for the Armed Forces], even though it is not an Article III court."[14] Justice Elena Kagan explained that this court, called the CAAF, is an Article II court of record of five civilian judges appointed to serve 15-year terms.[15]

She reasoned that "the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex."[16]

The justice further observed, "The procedural protections afforded to a service member are 'virtually the same' as those given in a civilian criminal proceeding, whether state or federal."[17]

Sections 1259 and 867a

Ramos reaffirmed in 2020 that the Sixth Amendment's unanimity requirement applies to federal criminal trials as a fundamental right, and Ortiz found in 2018 that the Supreme Court has appellate jurisdiction over the military justice system, while adding that service members' procedural protections at courts-martial are virtually the same as in a civilian criminal trial.

How, therefore, may a service member still now be found guilty of a homicide on a verdict of 7-1 or even 6-2, three years after Ramos?

It's only because Title 28 of the U.S. Code, Section 1259, and Title 10 of the U.S. Code, Section 867a, limit the appellate jurisdiction of the Supreme Court over the CAAF, and until last week the CAAF had not ruled on the Ramos issue.

The Constitution sets forth that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,"[18] and "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States" and "to Controversies to which the United States shall be a Party."[19]

However, the Constitution also sets forth that the Supreme Court's appellate jurisdiction is subject to "such Exceptions, and under such Regulations as the Congress shall make."[20]

Sections 1259[21] and 867a[22] by their terms block the Supreme Court from hearing a case such as Cooper — unless the military wants the court to hear it.

Section 1259 states that its jurisdiction over the CAAF is limited to cases reviewed by the CAAF, which would include capital cases;[23] cases certified to the CAAF by a top-ranking judge advocate general of a uniformed service; cases in which the CAAF granted a petition for review; or cases in which the CAAF granted relief.

Section 867a states in turn that the Supreme Court may not review by writ of certiorari the CAAF refusing to grant a petition for review.

Thus, by statute, either the CAAF or the most senior judge advocate generals must agree to allow the Supreme Court jurisdiction over military judicial decisions. Otherwise, the Supreme Court cannot intervene, even in a noncapital homicide case in which a conviction which may be based on plain and gross constitutional error.

And the military insists, even in the face of Ortiz's promise that service members' due process rights are virtually the same as civilian criminal defendants, that Ramos' guarantee of unanimous verdicts does not apply to courts-martial. So Cooper ran out of avenues for appeal.

The CAAF finally took up this issue in the case of U.S. v. Anderson, ruling just last week that defendants in courts-martial do not have a right to a unanimous guilty verdict under the Sixth Amendment.[24]

Ramos Within the Military Justice System

Constitutional rights identified by the Supreme Court also apply to service members, unless by text or scope they are plainly inapplicable, due to a specific exception or the overriding demands of discipline.[25]

Yet before Ramos, Article III courts twice considered whether courts-martial that did not require unanimous verdicts were constitutional, and found that they were, and twice refused to consider habeas corpus petitions on the same subject.[26]

Military appellate courts have uniformly rejected arguments that less-than-unanimous verdicts are unconstitutional after Ramos, reasoning that the Sixth Amendment does not apply to courts-martial.

The CAAF's Anderson ruling substantially relied for this proposition on two landmark Supreme Court decisions, Ex parte Quirin in 1942 and Ex parte Milligan in 1866.[27]

This reliance is misplaced; Quirin and Milligan are clearly distinguishable from Ramos, as they involved military commissions, not courts-martial.

The rights of a service member before a court-martial are greater than those of a German unlawful enemy combatant, as in Quirin, or a Confederate sympathizer, as in Milligan, before a military commission intended for wartime enemies, which differs from a court-martial. It is an apples-to-oranges comparison.

Anderson further weakly relied for the proposition that the Sixth Amendment does not apply to courts-martial upon dicta in four cases — one of which was since overturned — considering issues very different than the unanimity question presented by Ramos.

These cases prohibited courts-martial for most ex-service members, service members' civilian family members, or crimes unconnected to their military service, and upheld the conviction of a soldier despite his plea of insanity.[28]

Of the eight distinct protections provided to defendants by the text of the Sixth Amendment, even military courts already find that six apply to service members: the rights to a speedy trial, to a public trial, to confront witnesses, to notice, to compulsory process, and to the assistance of effective counsel.

A seventh right, to a jury drawn from the state and district where the crime occurred, is not applicable to the military, for practical reasons: a crime that occurred in Afghanistan may no longer be tried there, or with Afghan jurors, for example.

The eighth right enumerated in the Sixth Amendment, to an impartial jury, is held by military courts to apply to service members through the due process clause of the Fifth Amendment.[29]

The Supreme Court allows courts-martial some small latitude because of the military's unique mission.

For example, the court found in its Wade v. Hunter decision that double jeopardy did not attach when a court-martial, convened by George S. Patton's Third Army during its advance across France and into Germany, was terminated due to logistical challenges presented by a rapidly changing tactical situation, and reconvened by a different unit at a later date.[30]

The Supreme Court also found that summary courts-martial were not criminal prosecutions within the meaning of the Sixth Amendment, such that a right to counsel might attach.[31]

However, summary courts-martial can only impose a maximum sentence of one month's confinement, more like a violation than even a misdemeanor, unlike general courts-martial, which try felonies.

Since Ramos, military appellate courts unanimously rejected service members' appeals that they may have been convicted by less-than-unanimous verdicts in violation of the Sixth Amendment, and held that the Sixth Amendment does not apply to courts-martial, despite the fact that, as discussed above, seven of the amendments' provisions do indeed apply.

Arguments based upon Ramos have drawn only a single dissent in support, in last year's U.S. v. Westcott, with Military Judge Charlton Meginley correctly reasoning that


Military defendants already face significant obstacles that civilian defendants do not.

Unlike in the civilian criminal justice system, a general or flag officer who convenes a court-martial and refers charges against a service member is in the evaluation report rating chain of the prosecutors.

The convening authority picks and also often participates in the annual performance evaluation rating chain of the jurors, upon which they are selected, or not, for subsequent promotions.

Trial witnesses are often in the rating chain of the convening authority as well.

While unlawful command influence by generals and admirals trying to influence the outcomes of courts-martial is prohibited by the Uniform Code of Military Justice, or UCMJ,[33] it remains, in the words of the U.S. Court of Military Appeals' 1986 U.S. v. Thomas decision, "the mortal enemy of military justice."[34]

In addition to facing all of these hurdles, further allowing service members to be convicted by nonunanimous verdicts — which suggest that by definition, prosecutors did not meet their burden of proving their criminal case beyond a reasonable doubt — is not just unconstitutional, but also deeply unfair from a policy perspective.

Legislative Remedies

The Supreme Court will likely extend its Ramos and Ortiz jurisprudence to require unanimous verdicts to convict at courts-martial if Master Sergeant Anthony Anderson and his counsel seek certiorari in the U.S. v. Anderson case.

But what if the Supreme Court unaccountably fails to recognize this service member's right?

Service members deserve unanimous verdicts before being convicted of a crime, just like any other U.S. citizen, and Congress should act expeditiously to require unanimous verdicts.

Specifically, the relevant statute should be amended to state that no person may be convicted of a court-martial offense other than "by the concurrence of all the members present when the vote is taken."[35]

Beyond the specific issue presented by nonunanimous verdicts, service members convicted of crimes deserve the right to petition the Supreme Court for judicial review of constitutional errors in those proceedings, just like any other American, and the military should not be allowed to avoid Supreme Court review of military judicial decisions in which the military ignores Supreme Court decisions it does not like.

With due respect to the uniformed services, it ought not be up to three senior judge advocates and an Article II court to determine whether the military is following Supreme Court decisions on constitutional-criminal matters. Congress should act swiftly to allow the Supreme Court to review such petitions.

Specifically, the statute limiting the Supreme Court's review of CAAF decisions, stating that the "Supreme Court may not review by a writ of certiorari under this section any action of the [CAAF] in refusing to grant a petition for review," should be amended by simply striking the word "not."[36]

Service members unavoidably give up some rights when they raise their right hands and swear to support and defend the U.S. Constitution. Their rights to a unanimous verdict before being convicted of a crime, and to petition the Supreme Court to review such convictions for constitutional error, ought not be among them.

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Kevin Carroll is a partner at Hughes Hubbard & Reed LLP. He previously served as senior counselor to the secretary of homeland security and senior counsel to the House homeland security committee.

Disclosure: Carroll was part of the legal team that represented Cooper pro bono in a petition for appeal in U.S. v. Cooper, USCA Dkt. No. 23-0120/AF, Crim.App. No. 40092.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See United States v. Cooper transcript at 1519:9-1520:10, citing New Mexico Annotated Statutes §§ 66-7-319, 334, 335, and 339.

[2] See 10 U.S.C. § 919, Art. 119, UCMJ, Manslaughter.

[3] See United States v. Cooper Record of Trial Vol. 1, Convening Authority Decision on Action, 29 March 2021.

[4] See 10 U.S.C. § 852, Art. 52(a)(3), UCMJ, Votes Required for Conviction.  Only capital crimes and sentences require panels' unanimity.  See Article 52(b)(1); see also transcript of United States v. Cooper at 1562:6.

[5] See R.C.M. 922(e), stating that court-martial panel members generally may not be questioned about their voting.

[6] 140 S. Ct. 1390 (2020) (Gorsuch, J.).

[7] See id. at 1397, stating that "There can be no question [] that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally."

[8] 138 S. Ct. 2165 (2018) (Kagan, J.).

[9] See id. at 2170, 2174.

[10] See 140 S. Ct. at 1394.

[11] U.S. Const. amend. VI.

[12] 140 S. Ct. at 1396.

[13] Id. at 1397, citing Duncan v. Louisiana , 391 U. S. 145, 148-150 (1968).

[14] 138 S. Ct. at 2170.

[15] See id. at 2171. The narrower issue presented in Ortiz was whether a uniformed officer could properly serve on both the U.S. Air Force Court of Criminal Appeals and the Court of Military Commission Review.  The Supreme Court found this to be permissible. See id. at 2170.

[16] Id. at 2173.

[17] Id. at 2174, citing D. Schlueter, Military Criminal Justice: Practice and Procedure §1-7, p. 50 (9th ed. 2015).

[18] U.S. Const. art. III §1, cl. 1.

[19] Id. at art. III § 2.

[20] Id. cl. 2.

[21] 28 U.S.C. § 1259, Court of Appeals for the Armed Forces.

[22] 10 U.S.C. § 867a, Review by the Supreme Court.

[23] See 10 U.S.C. § 867(a), stating that the CAAF shall review the record in capital cases.

[24] No. 22-0193, Crim. App. No. 39969 (Jun. 29, 2023).

[25] See United States v. Easton , 71 M.J. 168, 174 (C.A.A.F. 2012).

[26] See Stout v. Hancock , 146 F.2d 741, 745 (4th Cir. 1944) (upholding a court-martial conviction in a case where the defendant was convicted with the votes of six of the eight members on the panel, under rules that predate the UCMJ); Mendrano v. Smith , 797 F.2d 1538, 1547 (10th Cir. 1986) (denying a habeas corpus petition from a soldier convicted by a six-member panel, who could have been convicted by a less than unanimous verdict); see also Bramel v. Hart , 1993 U.S. Dist. LEXIS 18600 at *10 (D. Kan. Nov. 30, 1993) and Jones v. United States Disciplinary Barracks , 1990 U.S. Dist. LEXIS 5587 at *1 and * 3 (D. Kan. Apr. 13, 1990) (declining address habeas petitions from soldiers who argued that their convictions on possibly less than unanimous verdicts, should be set aside). C.f. Andrews v. Knowlton , 509 F.2d 898, 902 (2d Cir. 1975) (upholding the dismissal of cadets from the U.S. Military Academy as conforming with due process, in part because its Honor Committee required a unanimous verdict to expel a cadet).

[27] Anderson at 4 (slip opinion); 317 U.S. 1 (1942) and 71 U.S. 2 (1866). Anderson also rejected an argument that the Due Process Clause of the Fifth Amendment requires unanimous verdicts, id. at 10-18.

[28] See United States ex rel. Toth v. Quarles , 350 U.S. 11, 23 (1955) (holding that the military generally may not court-martial ex-servicemembers); Reid v. Covert , 354 U.S. 1, 5 (1957) (holding that the military may not court-martial servicemembers' civilian family members); and O'Callahan v. Parker , 395 U.S. 258, 272 (1969), overruled by Solorio v. United States , 483 U.S. 435 (1987) (holding that the military my on court-martial servicemembers for crimes connected to their military service); and Whelchel v. McDonald , 340 U.S. 122, 127 (1950) (upholding the conviction of a soldier despite his plea of insanity).

[29] See generally R. Crnkovich, Applying Ramos v. Louisiana to Courts-Martial at 3-4, provided courtesy of the U.S. Air Force trial defense service.

[30] See Wade v. Hunter , 336 U.S. 684, 691-92 (1949).

[31] See Middendorf v. Henry , 425 U.S. 25, 33 (1976).

[32] 2022 CCA LEXIS 156, *108-09 (A.F. Ct. Crim. App. Mar. 17, 2022).

[33] See 10 U.S.C. § 837, Art. 37, UCMJ, Command influence. Even this rule allows convening authorities to "discuss matters to consider regarding the disposition of alleged violations" with a subordinate.

[34] United States v. Thomas , 22 M.J. 388, 393 (C.M.A. 1986). See also United States v. Chamblin , 2017 CCA LEXIS 694, at *23 (N-M Ct. Crim. App. Nov. 8, 2017) (stating that the "highest-ranking officer in the Marine Corps told the [consolidated disposition authority] that the appellant and his co-accuseds should be "crushed."  This is an unusually flagrant example of UCI. We find that UCI this direct, and occurring at this level, is highly corrosive to public trust in this proceeding").

[35] C.f. Article 52(a)(3), UCMJ, Votes Required for Conviction, and R.C.M. 921(c)(2), Deliberations and voting on findings. To effectuate this amendment, the Polling Prohibited rule which forbids the polling of members about their deliberations and voting should be amended by simply striking the phrase "and voting." C.f. R.C.M. 922(e).

[36] C.f. 10 U.S.C. § 867a(a). To effectuate this amendment, the statute establishing the Supreme Court's limited review of CAAF decisions, stating that its decisions may be reviewed by the Supreme Court by writ of certiorari in just four instances, should be amended by simply adding a subsection stating that SCOTUS may review cases in which the CAAF declined to review decisions by the Air Force, Army, and Navy-Marine Corps Courts of Criminal Appeals. C.f. 28 U.S.C. § 1259(4), stating that CAAF decisions may be reviewed by SCOTUS by writ of certiorari in cases "in which the Court of Appeals for the Armed Forces granted relief."