Brief filed: 08/31/2022
United States v. Anthony Anderson
United States Court of Appeals for the Armed Forces; Case No. 22-0193/AF
In the decision that precipitated the “unanimous verdict” issue here, Ramos v. Louisiana, 140 S. Ct. 1390 (2020), NACDL (among others) filed an amicus brief. NACDL’s interest in this issue continues because members of our Armed Forces tried by courts-martial under the Uniform Code of Military Justice [UCMJ] are not second-class citizens and do not forfeit their Fifth or Sixth Amendment rights to a unanimous verdict upon donning a military uniform. Pursuant to CAAF Rule 26(b), our amicus curiae brief “bring[s] relevant matter to the attention of the Court not already brought to its attention by the parties...” NACDL’s approach is different regarding the substantive issue, i.e., does the Sixth Amendment’s guarantee of a unanimous verdict in a criminal case, apply to noncapital courts-martial for serious offenses? Alternatively, does the Fifth Amendment’s Due Process Clause require unanimity? Our amicus brief does not duplicate Appellant’s arguments. NACDL takes a different path in arriving at the same conclusion–non-unanimous verdicts in noncapital courts-martial violate the Constitution. NACDL’s position is that Congress, when enacting Article 52(a)(3), UCMJ, provided for non-unanimous verdicts–as in Ramos–by “the concurrence of at least three-fourths of the members present when the vote is taken” –which contravenes what the Constitution commands, viz., a unanimous verdict. Article 52(a)(3), UCMJ, is therefore unconstitutional on its face.
Donald G. Rehkopf, Jr., Law Office of Donald G. Rehkopf, Jr., Rochester, NY; Barbara E. Bergman, NACDL, Tucson, AZ.