Amicus Curiae Brief of the Petitioner, National Association of Criminal Defense Lawyers in Support of the Real Party in Interest.
Argument: NACDL, as amicus curiae, submits that Article 52(a)(3), UCMJ, which authorizes non-unanimous verdicts by three-fourths of the voting members in a courtmartial for serious offenses, is unconstitutional on its face. First, military law has long recognized that a military accused has a right to “a fair and impartial panel” which is “a matter of due process” under the Fifth Amendment. United States v. Wiesen, 56 M.J. 172, 174 (CAAF 2001). That is because “[i]mpartial court members are the sine qua non for a fair court-martial.” United States v. Modesto, 43 M.J. 315, 318 (CAAF 1995).
Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal.
Argument: The removal of juror 12 violated the fundamental rights to trial by jury and to a unanimous verdict. The applicable legal principles: The "No Reasonable Possibility" standard. The district court violated defendant's rights under the Sixth Amendment and Fed. R. Crim. P. 31(a). The district court should have refused to send the speaking indictment to the jury during deliberations.