1. Given the extent to which court-martial panels now function for all practical purposes like civilian court juries -- certainly more than they did when the Bill of Rights was ratified -- is it clear that the decision will not be extended to courts-martial?
2. Is the extension of court-martial jurisdiction over time to offenses that are not only not core military offenses but also to those that lack any service-connection pertinent to this conversation?
3. Is there a principled reason to distinguish between military capital cases, which require unanimity, and other courts-martial which may entail lengthy periods of confinement, up to life without parole?
4. Whether or not the non-unanimous court-martial panel survives constitutional challenge in the wake of Ramos, should Congress impose unanimity legislatively? After all, what the Constitution requires is a floor, not a ceiling.
Comments are invited. (Real names only, please.)
Gene, it's past time for the military to have real, randomly selected juries with unanimous verdicts whether guilty or not guilty. As I testified before the DAC-IPAD last year:
ReplyDeleteRegardless, I believe a 12 person jury reaching an unanimous verdict is the best way to achieve justice. The military court member process does not engender confidence in a verdict and is contrary to American values. I have full faith that experienced investigators and prosecutors operating under such a system will have a better chance of delivering justice to victims while diminishing the chance of wrongful convictions.
Comp law footnote: unanimity is now required in Canadian courts-martial.
ReplyDeleteA comment by "Brian" that I have seen suggests two reasons to continue the current practice.
ReplyDelete(1) No more anonymity in the deliberation room. Secret written ballots are pointless if the panel must continue voting until there is unanimity. Nor is there any reason to have member swear not to reveal someone’s vote. When deliberations don’t end until everyone agrees, would the junior members be more likely to switch their vote?
(2) No more anonymity outside the deliberation room. Each panel member’s commander, convening authority, and peer would know the votes of each member when there is a unanimity requirement. Currently, the only circumstances where a member’s vote can be mathematically determined is when the panel imposes a death sentence. Would, in certain cases, panel members feel pressured for certain results?