Court-Martial Convictions Would Need Unanimous Jury Verdicts Under Measure Added to Defense Bill

Members of the Judge Advocate General Corps complete a mock court martial
Members of the Judge Advocate General Corps complete a mock court martial as part of a year-long judicial training exercise in 2018. (Army National Guard photo by Staff Sgt. Katherine Dowd.)

Court-martial convictions and sentences would require unanimous jury verdicts under an amendment added to the House's version of the annual defense policy bill last week.

The amendment, which was approved by voice vote as part of a package of proposals considered noncontroversial, would change one of the last ways the military justice system differs from civilian courts after a series of reforms Congress mandated in recent years. The court-martial legislation and the package received little attention amid heated partisan battles over the larger bill.

The National Defense Authorization Act, or NDAA, still has several steps before becoming law, including reconciling with the Senate's version, which does not have a similar provision. But it marks the first time Congress has advanced legislation to make unanimity the threshold for guilty verdicts in courts-martial.

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Right now, the Uniform Code of Military Justice requires at least three-fourths of a jury, officially called a panel, to agree to a conviction. The same is true for sentencing -- except in death penalty cases, which require a unanimous verdict. Service members can also choose to have their case and sentence decided only by a judge rather than a jury.

That makes military courts the last in the nation that don't require unanimous verdicts after the Supreme Court ruled in 2020 that the Sixth Amendment requires guilty verdicts in civilian criminal trials to be unanimous.

"The Supreme Court has recognized that unanimous verdicts are the gold standard of justice for all Americans, other than those in the military," said Don Christensen, a retired Air Force colonel who served as the service's chief prosecutor.

Christensen, who stressed that he believes court-martial verdicts should be unanimous for both convictions and acquittals, said the military has resisted changing the standard by arguing that requiring unanimous verdicts could slow down court-martial proceedings or lead to unlawful command influence.

"We expect junior enlisted members to be able to push back against unlawful orders even if it comes from high-ranking officers, and that would be an unlawful order," Christensen said of an officer attempting to pressure a lower-ranking service member to rule a certain way. "So, I don't think unlawful command influence should be a basis to deny those who are in the military unanimous verdicts."

Eric Carpenter, a former military lawyer who is now a law professor at Florida International University, also said inertia has kept the U.S. military justice system from requiring unanimous verdicts since majority jury verdicts have been the standard in other militaries since colonial days.

The NDAA amendment, which was offered by Rep. Matt Gaetz, R-Fla., would change the Uniform Code of Military Justice so that court-martial juries need to come to "unanimous concurrence" for convictions and sentences.

Gaetz's office did not respond to a request for comment on his thinking behind the amendment, which was offered in previous years by former Rep. Louie Gohmert, R-Texas, but not granted a vote until this year.

But it is an issue that has recently been debated by top military courts.

Last year, a military judge in Germany ruled that the jury verdict needed to be unanimous in the court-martial of an Army officer who has since been found guilty on two counts of attempting to sexually abuse a child.

Prosecutors appealed the judge's order for a unanimous verdict; last month, the military's highest appeals court ruled that troops do not have a right to unanimous verdict.

In its 5-0 ruling, the U.S. Court of Appeals for the Armed Forces noted that Congress specifically did not require unanimous verdicts in past reform efforts.

"We acknowledge that Congress has -- over time -- amended the UCMJ to make the military justice system more like civilian courts," the court wrote.

"But Congress's efforts to close the gap between the two systems does nothing to make us question our decision in Akbar that an accused servicemember is not similarly situated to a civilian defendant," the ruling added, referring to a 2015 ruling.

In an effort to combat military sexual assault, in the last couple years, Congress has reformed the military justice system to more closely operate like civilian justice systems. Most prominently, lawmakers took the decision to prosecute sexual assault and some other serious crimes away from commanders and gave the power to independent prosecutors.

Because Congress' focus has been on securing more convictions for sexual assault and because requiring unanimous verdicts could mean fewer convictions, Carpenter expressed skepticism that Gaetz's amendment will become law.

"Many reformers will look at this as being an anti-reform because of the effect it would have on sexual assault prosecutions," Carpenter said.

-- Rebecca Kheel can be reached at Follow her on Twitter @reporterkheel.

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