Brief filed: 07/10/2021
United States v. Martinez
United States Air Force Court of Criminal Appeals; Case No. ACM 39973
NACDL’s amicus brief argues that Article 52(a)(3) of the Uniform Code of Military Justice, 10 U.S.C. § 852(a)(3), which permits nonunanimous verdicts by only a three-fourths majority in non-capital courts-martial involving serious offenses, is unconstitutional under Ramos v. Louisiana. Courts-martial have been considered “judicial” for almost 135 years. The UCMJ contemplates that the accused must be given a fair trial, and courts have recognized that the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards unless conditions peculiar to military life require a different rule. The Sixth Amendment has already been extensively incorporated into our military justice system. With the exception of unanimous verdicts, servicemembers facing a court-martial for serious offenses receive the core panoply of constitutional trial rights, and the military justice system is none the worse-for-wear as a result. Contrary to the lower court’s assertion, non-unanimity promotes unlawful command influence, rather than preventing it. Although Congressional powers are necessarily broad in the area of military affairs, they are not absolute or unlimited. Whether found under the Due Process Clause or, as Ramos holds, under the Sixth Amendment’s Impartial Jury Clause, the right to a unanimous verdict in a criminal prosecution is constitutionally mandated. It is the Constitution that controls on this issue, not a provision within the UCMJ.
Donald G. Rehkopf, Jr., The Law Office of Donald G. Rehkopf, Jr., Rochester, NY; Barbara E. Bergman, NACDL Amicus Committee Co-Chair, Tucson, AZ.