2022 (October Term)
United States v. Anderson, 83 M.J. 291 (courts-martial defendants do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection).
(the Sixth Amendment right to a jury trial does not apply to courts-martial).
(even if the Supreme Court’s statements in past cases exempting the military justice system from the Sixth Amendment’s right to a jury trial technically qualify as nonbinding dicta, the Supreme Court has never treated them as such; and because the Supreme Court has repeatedly relied on the principle that courts-martial are fundamentally different from civilian trials due to that exemption, the CAAF will not ignore over a century of consistent guidance from the Supreme Court about the applicability of the Sixth Amendment to military trials).
(although the Sixth Amendment right to a jury trial has never applied in the military justice system, an accused servicemember’s right to be tried by impartial panel members has long been a cornerstone of the military justice system).
(an “impartial” jury is not synonymous with a “unanimous” jury; impartiality in the military justice system has never been understood to require unanimous verdicts).
(in the absence of a Sixth Amendment right to a jury trial in the military justice system, appellant had no Sixth Amendment right to a unanimous verdict in his court-martial).
(the factors militating in favor of the right to a unanimous verdict are not so weighty as to overcome the balance struck by Congress in Article 52, UCMJ; first, historical evidence establishes that for more than two centuries, courts-martial verdicts have not been subject to a unanimity requirement; second, several unique safeguards in the military justice system address appellant’s concerns about the impartiality and fairness of courts-martial without unanimous verdicts, e.g., Article 51(a), UCMJ, requires voting by secret ballots, which protects junior panel members from the influence of more senior members and appellants in the military justice system are also entitled to factual sufficiency review on appeal, ensuring panel verdicts are subject to oversight).
(even if appellant were similarly situated to a civilian criminal defendant, he has no fundamental right to a unanimous verdict in the military justice system where he failed to rebut the rational basis for the nonunanimous provision of Article 52, UCMJ, that it serves the legitimate government purposes of promoting efficiency in the military justice system and of guarding against unlawful command influence in the deliberation room; these justifications for nonunanimous verdicts in courts-martial are rationally related to legitimate state interests and do not violate appellant’s Fifth Amendment right to equal protection).
2019 (October Term)
United States v. Bess, 80 M.J. 1 (an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion).
2017 (October Term)
United States v. Riesbeck, 77 M.J. 154 (courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community).
2016 (October Term)
United States v. Commisso, 76 M.J. 315 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel; indeed, impartial court-members are a sine qua non for a fair court-martial).
2011 (September Term)
United States v. Easton, 71 M.J. 168 (in courts-martial, there is no right to indictment by grand jury; in addition, there is no Sixth Amendment right to trial by jury in courts-martial).
United States v. Nash, 71 M.J. 83 (an accused enjoys the right to an impartial and unbiased panel; this right is provided in the military justice system by the Constitution, federal statutes, regulations and directives, and case law).
2008 (Transition)
United
States v. Elfayoumi, 66 M.J. 354 (as a matter of
due process, an
accused has a constitutional right, as well as a regulatory right, to a
fair
and impartial panel).
United
States v. Ortiz, 66 M.J. 334 (in all criminal
prosecutions, the accused
shall enjoy the right to a public trial; a public trial ensures that
judge and
prosecutor carry out their duties responsibly and discourages perjury).
(the right to a public trial
is not absolute;
however, there is a strong presumption in favor of a public trial,
grounded in
the belief that it is critical to affording an accused a fair trial, as
judges,
lawyers, witnesses, and jurors will perform their respective functions
more
responsibly in an open court than in secret proceedings; this
presumption is
overcome only where the balance of interests is struck with special
care).
(recognizing the importance
of the right to a
public trial, not only to an accused, but to the public and the
integrity of
the criminal process, prior to closing a trial, it is required that:
(1) the
party seeking closure must advance an overriding interest that is
likely to be
prejudiced; (2) the closure must be narrowly tailored to protect that
interest;
(3) the trial court must consider reasonable alternatives to closure;
and (4)
the trial court must make adequate findings supporting the closure to
aid in
review).
(in this case, the military
judge abused her
discretion and denied the accused his right to a public trial by
closing the
courtroom to spectators during the testimony of a minor victim, where
the military
judge failed to correctly apply the legal Waller test (Waller
v.
Georgia, 467 US 39 (1984)) necessary to overcome the presumption in
favor
of a public trial and did not even identify the relevant Waller
factors
to consider or articulate the reason for her decision to clear the
courtroom,
let alone make findings).
(where only some spectators
are required to
leave the courtroom, and some spectators can or do remain, the
Constitution’s
public trial guarantee, which ensures that participants perform their
duties
more responsibly and discourages perjury, is only moderately burdened
as
certain spectators remain and are able to subject the proceedings to
some
degree of public scrutiny; consequently, several circuits have found no
erroneous deprivation of the right to a public trial despite limited
findings by
the trial court or the absence of findings in the context of a partial
closure).
(while the Sixth Amendment
does not dictate a
formalistic approach as to the manner in which a judge delivers
findings
supporting the closing of a trial, a military judge must make some
findings
from which an appellate court can assess whether the decision to close
the
courtroom was within the military judge’s discretion).
(trial closure that occurred
when the military
judge completely closed the courtroom to spectators and locked the door
during
the substantive testimony of the key government witness, which was
essential
to, and comprised the bulk of, the government’s case, was a complete
closure
for purposes of the Sixth Amendment, albeit less than complete in a
temporal
sense).
(in this case, the record
does not support a
conclusion that the military judge struck the balance of interests
necessary to
overcome the presumption in favor of the right to a public trial, and
the
complete deprivation of the right was erroneous).
(an erroneous deprivation of
the right to a
public trial is structural error, which requires an appellate court to
overturn
appellant’s conviction without a harmlessness analysis).
United
States v. Bragg, 66 M.J. 325 (an accused has
a constitutional right, as
well as a regulatory right, to a fair and impartial panel).
2007
United States v. Albaaj, 65 M.J. 167 (a
touchstone of a fair trial is an impartial trier of fact; where
a potential member is not forthcoming, the process may well be burdened
intolerably).
2006
United
States v. Leonard, 63 M.J. 398 (a servicemember
does not have a Sixth
Amendment right to trial by jury; however, Congress has established the
court-martial as the institution to provide military justice to service
members;
Congress has also afforded every servicemember the right to have a
court-martial of panel members for both a general and a special
court-martial).
2005
United
States v. Richardson, 61 M.J. 113 (as a matter of due process, an
accused
has a constitutional right, as well as a regulatory right, to a fair
and
impartial panel).
2004
United
States v. Dowty, 60 MJ 163 (the Sixth Amendment right
to trial
by jury with accompanying considerations of constitutional means by
which
juries may be selected has no application to the appointment of members
of
courts-martial; a servicemember has no right to have a court-martial be
a jury
of peers, a representative cross-section of the community, or randomly
chosen;
but, the military defendant does have a right to members who are fair
and
impartial; this right is the cornerstone of the military justice
system).
2002