Petition for Writ of Certiorari — James T. Cunningham, Petitioner v. United States
Supreme Court briefDec 15, 2023
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No. _____
IN THE
Supreme Court of the United States
__________
JAMES T. CUNNINGHAM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Armed Forces
__________
PETITION FOR A WRIT OF CERTIORARI
__________
MAJOR SPENCER R. NELSON
Counsel of Record
United States Air Force
Air Force Appellant Defense Division
1500 West Perimeter Road, Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
spencer.nelson.1@us.af.mil
Counsel for Petitioner
December 2023
QUESTIONS PRESENTED
I.
Whether Senior Airman James T. Cunningham was
entitled to a unanimous verdict in his court-martial
when the Government convicted him of murder—a
serious crime that had no military nexus?
II.
In finding error—but no prejudice—whether the
Court of Appeals for the Armed Forces used the
correct test for prejudice when the victim impact
statement included videos, personal pictures, stock
images of future events, and lyrical music that
touched on themes of dying, saying farewell, and
becoming an angel in heaven?
i
PROCEEDINGS
The following is a list of all proceedings related
to this case:
(1) United States v. Cunningham, No. ACM 40093,
2022 CCA LEXIS 527 (A.F. Ct. Crim. App. Sep. 9,
2022)
(2) United States v. Cunningham, No. 23-0027, 83
M.J. 367 (C.A.A.F. Jul. 21, 2023)
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................ i
PROCEEDINGS ............................................................... ii
TABLE OF AUTHORITIES ................................................ v
PETITION FOR A WRIT OF CERTIORARI .......................... 1
OPINIONS BELOW ......................................................... 1
JURISDICTION ............................................................... 1
STATUTORY PROVISIONS INVOLVED .............................. 1
STATEMENT OF THE CASE ............................................. 3
A. QUESTION I: NON-UNANIMOUS VERDICT ................. 3
B. QUESTION II: PREJUDICE TEST FOR SENTENCING ... 5
1. Military Judge Response to Defense Counsel
Objection: “To me, That’s Proper Victim Impact” 8
2. The CAAF Opinion: Applying a Prejudice
Analysis in Sentencing “is Difficult”..................... 9
3. The CAAF Majority: “Nothing in the Record to
Support that the Military Judge was Substantially
Influenced by the Victim Impact Statement” ....... 9
4. The CAAF Dissent: The Record Will Almost
“Never . . . Reveal the Actual Extent to Which
Improper Evidence or Unsworn Statement
Influenced the Sentence”..................................... 11
a. This Case is “Indistinguishable” from
Edwards ......................................................... 11
b. The CAAF’s Prejudice Test is “too Crude a
Tool” ................................................................ 13
REASONS FOR GRANTING THE PETITION ..................... 14
A. UNANIMOUS VERDICTS IN COURTS-MARTIAL ARE AN
“IMPORTANT QUESTION OF FEDERAL LAW” THAT
SHOULD BE “SETTLED BY THIS COURT” ....................... 15
1. A Court-Martial is now the Only Nonunanimous Jurisdiction in the United States .... 15
2. Text, History, and Tradition Support Granting
Review .................................................................. 16
iii
a. The Text of the Fifth and Sixth Amendment
Supports Unanimous Verdicts for CourtsMartial ............................................................ 17
b. History is no Longer Viable...................... 19
c. Tradition Weighs in Favor of Unanimous
Verdicts ........................................................... 20
3. Conclusion ...................................................... 30
B. THIS COURT SHOULD GRANT REVIEW BECAUSE THE
CAAF’S PREJUDICE TEST “CONFLICTS WITH RELEVANT
DECISIONS OF THIS COURT” AND IS NOT A “PROPERLY
STATED RULE OF LAW” ............................................... 31
1. The CAAF is Openly Calling for a new
Prejudice Test and This Court Should Answer .. 31
2. The CAAF’s Prejudice Test Conflicts with this
Court’s Jurisprudence ......................................... 33
3. The CAAF is Violating Article 59, UCMJ, 10
U.S.C. § 859 ......................................................... 37
CONCLUSION .............................................................. 39
TABLE OF CONTENTS FOR PETITIONER’S APPENDIX ...... i
iv
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
Article I, Section 8 ...................................................... 1
Fifth Amendment.................................................. 1, 18
Sixth Amendment ................................................. 1, 17
STATUTES
10 U.S.C. § 162 .......................................................... 18
10 U.S.C. § 502 .......................................................... 39
Article 16, UCMJ, 10 U.S.C. § 816 ............................. 2
Article 52, UCMJ, 10 U.S.C. § 852 ....................... 2, 30
Article 59, UCMJ, 10 U.S.C. § 859 ............................. 2
Article 118, UCMJ, 10 U.S.C. § 918 ........................... 3
10 U.S.C. § 9013 ........................................................ 18
28 U.S.C. § 1259 (1983) .............................................. 1
National Defense Authorization Act for Fiscal Year
2022, Pub. L. No. 117-81, 135 Stat. 1541 ............. 31
SUPREME COURT CASES
Burns v. Wilson, 346 U.S. 137 (1953)....................... 31
Edwards v. Vannoy, 141 S. Ct. 1547 (2021) ...... 16, 25
Greer v. United States, 141 S. Ct. 2090 (2021) ........ 15
Kotteakos v. United States, 328 U.S. 750 (1946)...... 34
Middendorf v. Henry, 425 U.S. 25 (1976) ................ 29
Molina-Martinez v. United States, 578 U.S. 189
(2016) ..................................................................... 33
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct.
2111 (2022) ............................................................ 16
Ortiz v. United States, 138 S. Ct. 2165 (2018) ......... 17
Payne v. Tennessee, 501 U.S. 808 (1991).................. 27
Ramos
v.
Louisiana,
140
S.
Ct.
1390 (2020) ................................ 4, 16, 19, 25, 26, 39
Rock v. Arkansas, 483 U.S. 44 (1987) ...................... 24
v
Rosales-Mireles v. United States, 138 S. Ct. 1897
(2018) ............................................................... 34, 38
Solorio v. United States, 483 U.S. 435 (1987) .......... 28
Students for Fair Admissions, Inc. v. President &
Fellows of Harv. Coll., 143 S. Ct. 2141 (2023) ..... 28
United States v. Dominguez Benitez, 542 U.S. 74
(2004) ..................................................................... 34
United States v. Olano, 507 U.S. 725 (1993) ........... 31
United States v. Young, 470 U.S. 1 (1985) ............... 38
Whelchel
v.
McDonald,
340
U.S.
122 (1950) ...................................... 17, 25, 26, 27, 30
COURT OF APPEALS FOR THE ARMED
FORCES AND COURT OF MILITARY APPEALS
CASES
United States v. Barker, 77 M.J. 377 (C.A.A.F.
2018) ...................................................... 9, 11, 32, 38
United States v. Begani, 81 M.J. 273 (C.A.A.F.
2021) ...................................................................... 21
United States v. Bess, 75 M.J. 70 (C.A.A.F.
2016) ................................................................ 22, 24
United States v. Blazier, 69 M.J. 218 (C.A.A.F.
2010) ...................................................................... 23
United States v. Cooper, 58 M.J. 54 (C.A.A.F.
2003) ...................................................................... 23
United States v. Danylo, 73 M.J. 183 (C.A.A.F.
2014) ...................................................................... 23
United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011) ...................................................................... 24
United States v. Girouard, 70 M.J. 5 (C.A.A.F.
2011) ...................................................................... 24
United States v. Gooch, 69 M.J. 353 (C.A.A.F.
2011) ...................................................................... 25
United States v. Harrington, 83 M.J. 408 (C.A.A.F.
2023) ...................................................................... 32
vi
United States v. Hills, 75 M.J. 350 (C.A.A.F.
2016) ...................................................................... 21
United States v. Lambert, 55 M.J. 293 (C.A.A.F.
2001) ...................................................................... 27
United States v. Nelson, 82 M.J. 251 (C.A.A.F.
2022) ...................................................................... 21
United States v. Pullings, 83 M.J. 205 (C.A.A.F.
2023) ...................................................................... 22
United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020) ... 22
United States v. Shields, 83 M.J. 226 (C.A.A.F.
2023) ...................................................................... 22
United States v. Warner, 73 M.J. 1 (C.A.A.F.
2013) ...................................................................... 21
United States v. Wattenbarger, 21 M.J. 41 (C.M.A.
1985) ...................................................................... 25
United States v. Wiesen, 56 M.J. 172 (C.A.A.F.
2001) ...................................................................... 27
SERVICE COURTS OF CRIMINAL APPEALS
CASES
United States v. Westcott, No. ACM 39936, 2022
CCA LEXIS 156 (A.F. Ct. Crim. App. Mar. 17,
2022) .................................................... 25, 28, 29, 30
FEDERAL COURT CASES
Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023) . 19, 20
United States v. Palmer, Case No. 21-cr-328, ECF
No. 33 at 21-22 ...................................................... 37
United States v. Sabillon-Umana, 772 F.3d 1328
(10th Cir. 2014) ..................................................... 33
United States v. Trump, No. 23-257 (TSC), 2023
U.S. Dist. LEXIS 173165 (D.D.C. Sep. 27, 2023) . 37
vii
STATE COURT CASES
State v. Ramos, 2017-1199 (La. App. 4 Cir
11/02/17), 231 So. 3d 44 ........................................ 14
RULES AND OTHER AUTHORITIES
Department of the Air Force Instruction 51-201,
Administration of Military Justice (2023) ............ 18
Emily Holland, Moving Pictures . . . Maintaining
Justice? Clarifying the Right Role for Victim
Impact Videos in the Capital Context, 17
BERKELEY J. CRIM. L. 147 (2012) .......................... 33
George Washington, Instructions to Company
Captains: General Instructions to All the
Captains
of
Companies
(July
29,
1757), http://founders.archives.gov/documents/
Washington/02-04-02-0223 ................................... 20
Jonathan Turley, The Military Pocket Republic, 97
NW. U.L. REV. 1 (2002) .......................................... 20
Lt Colonel James B. Roan & Captain Cynthia
Buxton, The American Military Justice System
in the New Millennium, 52 A.F. L. REV. 185
(2002) ..................................................................... 20
Manual for Courts-Martial (1951 ed.)...................... 26
Nino Monea, Reforming Military Juries in the
Wake of Ramos v. Louisiana, 66 NAVAL L. REV.
67 (2020) ................................................................ 16
R.C.M. 1003 ........................................................... 2, 35
Ross E. Davies, Spiro T. Agnew in his own Words,
26 GREEN BAG 2D 327 (2023) ................................ 37
SUP. CT. R. 10 ................................................ 14, 15, 32
viii
PETITION FOR A WRIT OF CERTIORARI
Senior Airman James T. Cunningham
(SrA Cunningham) respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Armed Forces (CAAF).
OPINIONS BELOW
The Air Force Court of Criminal Appeals (Air
Force Court) decision is unreported, but available at
2022 CCA LEXIS 527 and reproduced at pages 001a –
047a of the Appendix. The CAAF decision is reported
at 83 M.J. 367 and reproduced at pages 048a – 069a
of the Appendix.
JURISDICTION
The CAAF entered its judgment in
SrA Cunningham’s case on July 21, 2023. On October
2, 2023, the Chief Justice extended the time to file a
writ of certiorari until December 18, 2023. This Court
has jurisdiction pursuant to 28 U.S.C. § 1259 (3)
(1983).
STATUTORY PROVISIONS INVOLVED
The United States Constitution states:
Article I, Section 8: Congress shall have the
power “[t]o make Rules for the Government and
Regulation of the land and naval Forces.”
Fifth Amendment: “No person shall be . . .
deprived of life, liberty, or property, without due
process of law . . . .”
Sixth Amendment: “In all criminal
prosecutions, the accused shall enjoy the right to . . .
an impartial jury . . . .”
1
The UCMJ provides:
Article 16(b)(1), UCMJ, 10 U.S.C. §
816(b)(1): In non-capital cases, a general courtmartial shall consist of “a military judge and eight
members.”
Article 52(a)(3), UCMJ, 10 U.S.C. §
852(a)(3): “No person may be convicted of an offense
in a general or special court martial, other than . . . by
the concurrence of at least three-fourths of the
members present when the vote is taken.”
Article 52(b)(2), UCMJ, 10 U.S.C. §
852(b)(2): “A sentence of death requires (A) a
unanimous finding of guilty of an offense in this
chapter expressly made punishable by death and (B)
a unanimous determination by the members that the
sentence for that offense shall include death.”
Article 59(a), UCMJ, 10 U.S.C. § 859(a): “A
finding or sentence of a court-martial may not be held
incorrect on the ground of an error of law unless the
error materially prejudices the substantial rights of
the accused.”
The Rules for Courts-Martial (R.C.M.) state:
R.C.M. 1001(c)(5)(A): “The crime victim may
make an unsworn statement and may not be crossexamined by trial counsel or defense counsel, or
examined upon it by the court-martial . . . . The
unsworn statement may be oral, written, or both.”
R.C.M. 1003(b)(1): “A court-martial shall not
specify the terms or wording of a reprimand. A
2
reprimand, if approved, shall be issued, in writing, by
the convening authority.”
STATEMENT OF THE CASE
On February 18, 2021, at a general courtmartial, contrary to his plea, a panel of officer and
enlisted members convicted SrA Cunningham of one
charge and one specification of murder, in violation of
Article 118, UCMJ, 10 U.S.C. § 918. Pet. App. at 002a.
The Military Judge sentenced SrA Cunningham to a
dishonorable discharge, confinement for 18 years,
forfeiture of all pay and allowances, and reduction to
the grade of E-1. Pet. App. at 002a-3a The Convening
Authority took no action on the findings or sentence.
Id. On September 9, 2022, the Air Force Court
affirmed the findings and sentence. Pet. App. at 004a.
On July 21, 2023, by a divided vote, the CAAF
affirmed the Air Force Court’s decision. Pet. App. at
048a-49a.
A. Question I: Non-unanimous Verdict
The panel of officer and enlisted members
convicted SrA Cunningham of murdering his 5month-old son at his off-base home while
SrA Cunningham was off-duty. Pet. App. at 002a.
After striking his son, the son struggled to breath. Pet.
App. at 006a. SrA Cunningham called 911, civilian
paramedics responded, and they transferred his son to
a civilian emergency room. Id. Soon after, local, nonmilitary detectives questioned SrA Cunningham and
he ultimately confessed to hitting his son. Pet. App. at
007a. But for the local police ceding jurisdiction to the
Air Force, SrA Cunningham would have had the right
to a unanimous jury. See generally, Pet. App. at 002a16a.
3
At trial, SrA Cunningham filed a written
motion for “Appropriate Relief—Unanimous Verdict
or Dismissal.” Pet. App. at 093a. The Defense Counsel
requested that the Military Judge instruct the
members that their verdict must be unanimous or, in
the alternative, to dismiss the charges if the Military
Judge believed he did not have authority to issue such
an instruction. Id. The Military Judge denied
SrA Cunningham’s motion. Pet. App. at 126a.
The Military Judge empaneled eight members
to determine SrA Cunningham’s guilt or innocence.
Pet. App. at 122a-123a. The Military Judge instructed
the members that, “The concurrence of at least threefourths of the members present when the vote is taken
is required for any finding of guilty. Since we have 8
members that means 6 members must concur in any
finding of guilty.” Pet. App. at 126a. The Military
Judge also told the members, “As the findings do not
require a unanimous agreement, no one will ever
know how you voted in this case or whether you
concurred with the findings ultimately announced.”
Pet. App. at 124a.
After the members found SrA Cunningham
guilty, SrA Cunningham moved the Military Judge to
poll the members on whether their verdict was
unanimous. Pet. App. at 129a. The Defense Counsel
explained that they had preserved the issue, that they
believed this was a constitutional issue because of
Ramos v. Louisiana, 140 S. Ct. 1390 (2020), and they
wanted to show whether there was actual prejudice
and not just a constitutional or structural error. Id.
The Military Judge denied the request. Pet. App. at
130a.
4
B. Question II: Prejudice Test for Sentencing
SrA Cunningham elected to be sentenced by
the Military Judge. Pet. App. at 034a.
During the sentencing proceedings, the victim’s
representative, C.M., delivered a victim impact
statement through a PowerPoint presentation. 1 This
presentation included various visual images (of her
and the victim), graphics, and was accompanied by the
following lyrical music:
I didn’t know today would be our last
Or that I’d have to say goodbye to you
so fast
I’m so numb, I can’t feel anymore
Prayin’ you’d just walk back through
that door
And tell me that I was only dreamin’
You’re not really gone as long as I
believe
There will be another angel
Around the throne tonight
Your love lives on inside of me
And I will hold on tight
It’s not my place to question
Only God knows why
I’m just jealous of the angels
Around the throne tonight
Per this Court’s rules, Counsel was unable to file the
PowerPoint disc with this Petition. SrA Cunningham asks this
Court to request his record of trial from the CAAF so it can view
the PowerPoint as it is difficult to assess the prejudice from the
printed materials alone.
1
5
You always made my troubles feel so
small
And you were always there to catch me
when I’d fall
In a world where heroes come and go
Well God just took the only one I know
So I’ll hold you as close as I can
Longing for the day, when I see your
face again
But until then
God must need another angel
Around the throne tonight
Your love lives on inside of me
And I will hold on tight
It’s not my place to question
Only God knows why
I’m just jealous of the angels
Around the throne tonight
Singin’ hallelujah
Hallelujah
Hallelujah
I’m just jealous of the angels
Around the throne tonight
Pet. App. at 147a. The impact statement also
consisted of the following:
•
Eleven slides, all including PowerPoint
animations. These animations included
transitions, appearing/disappearing text, and
6
some slides which crumpled like paper that is
being thrown away.
•
Fifty-two total still images of the victim and his
mother.
•
Ten still images of the victim and his mother
with text superimposed onto the images.
•
Four still images which were stock images of
imagined future events.
•
An embedded video collection with music on
Slide Two that auto played:
o Eleven videos with audio, 39 total still
images, and nine still images with text,
lasting four minutes and nine seconds.
o The lyrical music played for the entirety
of this first embedded presentation.
•
An embedded presentation on Slide Ten that
auto played:
o Two videos with audio, 14 total still
images, and one still image with text,
lasting one minute and three seconds.
o The same lyrical music also played
during this presentation.
Id. When the embedded videos on Slides Two and Ten
played, the accompanying music would lower in
volume so the contents of the video could be heard. Id.
Other notable items in the PowerPoint
production included stock images of imagined future
events that include one image per slide with the
following text, respectively: “First Day of School;”
“First Tee Ball Game;” “Graduation Day;” and
“Marriage.” Pet. App. at 148a-49a. Slide Eleven is a
7
professional picture of Z.C. laying inside of
SrA Cunningham’s uniform sleeping with a smile.
Pet. App. at 150a.
1. Military Judge Response to Defense
Counsel Objection: “To me, That’s Proper
Victim Impact”
The Defense objected to the PowerPoint
production in its entirety, arguing that it was “not a
proper means to bring a victim impact statement
before the court.” Pet. App. at 131a. The Defense
Counsel reasoned that the rule limited victim impact
statements to those that were “oral, written, or both,”
and that “[b]y the definition, what is on this CD is not
oral, or written.” Id.
The Military Judge overruled the objection.
Pet. App. at 134a. He stated that he had viewed the
presentation and, “To me, that’s proper victim impact
including psychological, social impact directly relating
to or arising from the offense to which the accused has
been found guilty.” Pet. App. at 136a.
C.M. later testified as a witness during
sentencing. Pet. App. at 052a. She also provided an
oral unsworn statement. Pet. App. at 138a. She began
with a brief introduction and then played the first
portion of her PowerPoint production, which included
Slides One through Two and the first embedded video
which lasted four minutes and nine seconds. Id. C.M.
then clicked through animated Slides Three through
Nine while speaking to the content on each slide. Id.
Slide Ten contained the second video which lasted one
minute and three seconds. Id. After this slide, she
advanced to the last slide and gave her closing
remarks. Id.
8
2. The CAAF Opinion: Applying a
Prejudice Analysis in Sentencing “is
Difficult”
SrA Cunningham’s case exposed the rift that
exists at the CAAF on how it should analyze prejudice
at sentencing. The CAAF acknowledged that applying
its existing test, the Barker factors, in sentencing “as
opposed to errors occurring during the findings phase
of the court-martial, is difficult.” Pet. App. at 055a.
While both the majority and the dissent focused on the
facts, they also outlined their competing theories on
how the CAAF should handle prejudice in sentencing.
3. The CAAF Majority: “Nothing in the
Record to Support that the Military Judge
was Substantially Influenced by the Victim
Impact Statement”
The CAAF acknowledged error then quickly
moved to its test for prejudice. Id. The test is whether
“the error substantially influenced the adjudged
sentence.” Id. To make that determination there are
four factors: (1) the strength of the Government’s case;
(2) the strength of the defense case; (3) the materiality
of the evidence in question; and (4) the quality of the
evidence in question. Id. (citing United States v.
Barker, 77 M.J. 377, 384 (C.A.A.F. 2018)). The CAAF
stated that it was “obligated” to use this test because
of its precedent, despite the difficulty of applying it in
sentencing. Pet. App. at 055a.
SrA Cunningham conceded, and the CAAF
found, that the first factor—the strength of the
Government’s case—weighed in favor of the
Government. Id.
For the second factor—the strength of the
defense case—the CAAF concluded that it weighed
9
“slightly in favor” of SrA Cunningham. Pet. App. at
056a. This was because over 13 people testified or
provided unsworn statements on his behalf. Id.
As to the third factor—materiality—the CAAF
found it weighed in favor of the Government. Its main
point was that the PowerPoint presentation “was
drawn from the evidence that had already been
admitted during both the trial on the merits and
sentencing proceedings.” Id.
The CAAF found that the fourth factor, quality
of the evidence, also weighed in favor of the
Government. The CAAF ultimately conceded, “The
victim impact statement in this case was clearly
intended by the victim advocates to evoke emotion.”
Pet. App. at 058a. However, it went on to state that
military judges are “presumed to know the law and
follow it absent clear evidence to the contrary.” Id.
(internal quotation and citation omitted).
The CAAF concluded by explaining the two
errors the Military Judge made. First, although the
Military Judge stated that he would give the
PowerPoint presentation “the weight that it
deserves,” that was not “clear evidence” to overcome
the presumption that he knew the law. Pet. App. at
059a. (citation omitted). The CAAF reasoned that,
“There is no indication in this record that the military
judge allowed the emotional aspects of the
presentation to affect him to a point that he departed
from his duty to determine an appropriate sentence in
a fair, objective, and unbiased manner.” Id. Second,
even though the Military Judge erred in allowing the
PowerPoint presentation, there was “nothing in the
record” to show that the erroneous PowerPoint
“substantially influenced” him. Id.
10
4. The CAAF Dissent: The Record Will
Almost “Never . . . Reveal the Actual Extent
to Which Improper Evidence or Unsworn
Statement Influenced the Sentence”
The two dissenting judges opened by explaining
why they were dissenting: First, to show that
SrA Cunningham’s case was identical to Edwards,
which was decided just the prior term, Pet. App. at
061a; United States v. Edwards, 82 M.J. 239
(C.A.A.F. 2022); and second, to explain that the
CAAF’s test for prejudice is not “generally suited to
the task of deciding whether an error has
substantially affected a sentence.” Pet. App. at 062a.
a. This Case is “Indistinguishable” from
Edwards
The dissent argued that SrA Cunningham’s
case was “indistinguishable” from Edwards. Pet. App.
at 063a. It recounted the factual similarities: “In both
cases, the court-martial found the accused guilty of
murder. In both cases, the military judge allowed the
victim’s representative to present music, video, and
photographs as a victim impact statement. In both
cases, the court-martial imposed a lengthy prison
sentence.” Pet. App. at 064a.
In its analysis of the Barker factors, the dissent
noted that it would have found the first two factors
weighed in favor of the Government because “the
Government’s case was strong, and . . . the defense’s
case was not.” Id.
As for the third factor, materiality, the dissent
argued that the facts dictated the same result as in
Edwards. Quoting that case, the dissent stated that
the victim’s PowerPoint “presented information about
the impact of the offense that had the potential to
11
influence the sentencing decision of the panel.” Id.
(citation and quotations omitted). The dissent argued
that the photos and videos conveyed the “profound
effects” that the murder had on the victims’ lives. Id.
For the fourth factor, quality of the evidence,
the dissent found it weighed in favor of
SrA Cunningham. Pet. App. at 065a. It homed in on
the fact that the “military judge expressly confirmed
the quality of the PowerPoint presentation when he
said: ‘To me, that’s proper victim impact including
psychological, social impact directly relating to or
arising from the offense to which the accused has been
found guilty.’” Id.
The dissent also rebutted the majority’s
analysis. As to quality, the dissent said, “[A]bsent a
highly unusual express statement by a sentencing
authority about sentencing deliberations, the record of
a case almost never will reveal the actual extent to
which improper evidence or unsworn statement
influenced the sentence.” Id.
Finally, the dissent batted down the majority’s
analysis that the presumption of knowing the law
protected the Military Judge. Pet. App. at 067a. The
dissent noted that the Military Judge erred when he
admitted the erroneous PowerPoint presentation
which cut against the presumption. Id. The dissent
then argued that the Military Judge “further
demonstrated that the PowerPoint presentation
would affect his judgment when he characterized the
PowerPoint presentation as containing ‘proper victim
impact.’” Id.
12
b. The CAAF’s Prejudice Test is “too Crude a
Tool”
The dissent made several points for why the
CAAF’s current prejudice test is “simply too crude a
tool for determining whether an error at sentencing
substantially affected a sentence.” Pet. App. at 068a.
First, it traced the history of the CAAF’s test and
noted that it was designed to determine whether
erroneous evidence rulings “substantially affected the
findings.” Pet. App. at 067a (citation omitted).
However, “without much discussion” the CAAF
started to use the same test to determine “whether an
error at sentencing substantially affected the
sentence.” Pet. App. at 068a (citation omitted).
Second, the dissent explained that “deciding
whether an error influenced the sentence is more
difficult than deciding whether an error influenced
the findings.” Id. This is because findings involve a
“binary
choice”—guilt
or
innocence—whereas
sentencing involves considerable discretion. Id. The
dissent emphasized that “[e]ven if the PowerPoint
presentation only added several months to his
confinement, that would still be material prejudice to
Appellant.” Id. Therefore, the dissent was “skeptical”
the current test could rule out such prejudice. Id.
Third, by limiting the prejudice analysis to four
factors, the CAAF “unnecessarily focus[es] more on
their definitions than on the total effects of an error.”
Id.
Fourth, and finally, the dissent discussed the
implications of Article 59(a), UCMJ, 10 U.S.C.
§859(a). It provides that a “sentence of a court-martial
may not be held incorrect on the ground of an error of
law unless the error materially prejudices the
13
substantial rights of the accused.” The dissent argued
that the CAAF has reduced the “material prejudice”
standard under Article 59, UCMJ, to just the four
Barker factors. Pet. App. at 069a. This was an error
because of “the difficulty of deciding whether errors
during the sentencing phase of the trial affected the
sentence.” Id.
REASONS FOR GRANTING THE PETITION
For the first question presented, this Court
should grant review because servicemembers being
convicted of serious crimes—such as murder—without
unanimity is an “important question of federal law”
that this Court should settle. See SUP. CT. R. 10(c). The
state of Louisiana convicted Evangelisto Ramos of
murder with a non-unanimous jury and this court
reversed that conviction. State v. Ramos, 2017-1199
(La. App. 4 Cir 11/02/17), 231 So. 3d 44, 46. Although
“it’s hard to say why these laws persist,” the
Government convicted SrA Cunningham of the very
same crime as Ramos but was able to do so without
unanimity—even after this Court decided Ramos.
Ramos, 140 S. Ct. at 1394. This Court should take this
case as it is the ideal vehicle to resolve the question
presented—a one-to-one comparison to Ramos with
the only difference being that SrA Cunningham rose
his hand to serve the nation.
There is also a prudential concern: This is likely
the last unanimous verdict petition that will be filed
with this Court. The CAAF has not taken, and is
unlikely to take, any additional unanimous verdict
cases since its decision in United States v. Anderson,
82 M.J. 440 (C.A.A.F. 25 Jul. 2022), petition for cert
filed, No. 23-437, (Oct. 26, 2023). All other
servicemembers convicted non-unanimously that
14
received an express grant of review from the CAAF
previously filed in Anderson or United States v.
Martinez, No. 22-0165/AF, 2023 CAAF LEXIS 494
(C.A.A.F. July 18, 2023), petition for cert. filed, No. 23242, (Sept. 8, 2023) (consolidating sixteen unanimous
verdict cases for consideration by this Court).
For the second question presented, this Court
should exercise its “supervisory power” over the CAAF
because it is using a prejudice test that conflicts with
this Court’s jurisprudence and its statutory
obligations under Article 59, UCMJ, 10 U.S.C. § 859.
See SUP. CT. R. 10(c). The test is not a “properly stated
rule of law” and the CAAF is the only appellate court
in the country using it. Id. See Greer v. United States,
141 S. Ct. 2090, 2102 (2021) (“When a defendant
contemporaneously objects and is wrongly overruled,
appellate courts generally review for harmless
error.”).
A. Unanimous Verdicts in Courts-Martial are an
“Important Question of Federal Law” that
Should be “Settled by this Court”
Two specific reasons justify a grant of review:
(1) The only forum in the United States where the
Government can convict a defendant of a serious
crime non-unanimously is a court-martial and (2) the
text, history, and tradition of the constitution and the
UCMJ weigh in favor of unanimous verdicts.
1. A Court-Martial is now the Only Nonunanimous Jurisdiction in the United
States
“[A] court-martial is now the only place in
America where a criminal defendant can be convicted
without consensus among the jury.” Nino Monea,
Reforming Military Juries in the Wake of Ramos v.
15
Louisiana, 66 NAVAL L. REV. 67, 72 (2020). This fact
alone is reason enough for this Court to grant review.
However, it is more pressing considering the fact that
servicemembers are the ones who volunteer to fight
and die for this “hard-won liberty,” even though it
currently does not apply to them. Ramos, 140 S. Ct. at
1402. To call the military’s way of convicting
servicemembers “an outlier would be perhaps too
suggestive of the possibility of company.”
Ramos, 140 S. Ct. at 1406.
2. Text, History, and Tradition Support
Granting Review
This Court emphasized that the “critical point”
in Ramos was that the Constitution’s “text and
history” required unanimous verdicts in state
criminal trials to “convict a defendant of a serious
offense.” Edwards v. Vannoy, 141 S. Ct. 1547, 1555–
56 (2021); Ramos, 140 S. Ct. at 1394. At least three
justices thought “tradition” played some role in the
Ramos decision as well. Edwards, 141 at 1575 (Kagan,
J., dissenting) (“At bottom, then, the Court took the
unusual step of overruling precedent for the most
fundamental of reasons: the need to ensure, in
keeping with the Nation’s oldest traditions, fair and
dependable adjudications of a defendant’s guilt.”)
(emphasis added)).
Although this Court did not invoke the text,
history, and tradition test explicitly à la N.Y. State
Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), it
appears those three factors weighed heavily in the
analysis. And, while not applied in the same way as in
Bruen, the text, history, and tradition underlying the
right to a unanimous verdict in the case sub judice
weigh in favor of granting review.
16
a. The Text of the Fifth and Sixth
Amendment Supports Unanimous Verdicts
for Courts-Martial
The opening line of the Sixth Amendment
supports unanimous verdicts for courts-martial
defendants. “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed.” U.S. CONST.
VI
(emphasis
added).
The
Sixth
AMEND.
Amendment—unlike the Fifth Amendment—contains
no textual exemption for the military. While it is true
that this Court has stated that the Sixth Amendment
does not apply to courts-martial, that issue warrants
further discussion in light of the “tradition” analysis
that follows below. Whelchel v. McDonald, 340 U.S.
122, 127, 71 (1950).
The relevant question, then, is whether courtsmartial are “criminal prosecutions.” This Court has
answered that question in the affirmative. In Ortiz v.
United States, this Court stated, “Each level of
military court decides criminal ‘cases’ as that term is
generally understood, and does so in strict accordance
with a body of federal law (of course including the
Constitution).” 138 S. Ct. 2165, 2174 (2018). This
Court noted that the “jurisdiction and structure” of
courts-martial “resemble those of other courts whose
decisions we review;” courts-martial can try “a vast
swath of offenses, including garden-variety crimes
unrelated to military service;” court-martial
jurisdiction “overlaps significantly with the criminal
jurisdiction of federal and state courts;” and the
military appellate process “replicates the judicial
apparatus found in most States.” Id. (citations
17
omitted). This Court’s conclusion was that courtsmartial are “in a word, judicial.” Id.
Likewise, the Fifth Amendment’s plain text
also supports unanimous verdicts. “No person shall be
held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time
of war or public danger;” U.S. CONST. AMEND. V
(emphases added).
It is highly relevant that when a
servicemember is court-martialed they are not legally
in “actual service in a time of war;” rather, they are in
an “organize, train, and equip status” under the
direction of the secretary of their military department.
10 U.S.C. § 9013. More than that, however, even in
the event of such a war, the Government places an
“administrative hold” on military members under
investigation and court-martial prosecution which
further benches them from combat or “actual service.”
See, e.g., Department of the Air Force Instruction 51201, Administration of Military Justice, para. 4.20
(2023). This status is opposed to actual combat
operations when military members are assigned to a
combatant commander to “perform missions assigned
to those commands” via the chain of command which
extends down from the “the President to the Secretary
of Defense . . . and from the Secretary of Defense to
the commander of the combatant command.” 10
U.S.C. § 162(a)-(b). Stated differently, Service
Secretaries and the troops under them do not fight
wars or engage in combat—combatant commanders
and their troops do. It follows that servicemembers
tried of crimes are not engaged in “actual service” as
the Fifth Amendment envisioned that term. Perhaps
18
they are in the “service” of their country in a broader
sense, but not the narrower sense of “actual service”
for combat purposes. U.S. CONST. AMEND. V.
On top of the legal distinction is the factual
distinction in this case. SrA Cunningham was not in
“actual service” when he struck the victim. He was off
work, off-base, and not on call. Pet. App. at 004a-6a.
His crime had no military nexus. Nor is
SrA Cunningham asking this Court to apply the
Sixth Amendment text in toto to the military. Rather,
only the narrower “unanimity requirement.” Ramos,
140 S. Ct. at 1397.
Thus, the plain text of the Fifth and Sixth
Amendments support unanimous verdicts. Especially
when considering the fact that servicemembers who
are court-martialed do not fall into the textual
exception that the Fifth Amendment provides.
b. History is no Longer Viable
The history of military jurisprudence is clear: It
does not support constitutional and criminal
protections for servicemembers, including unanimous
verdicts. See Parker, 417 U.S. at 743. If “history”
means to “help establish the public meaning of the
Constitution as understood . . . when the people
adopted it,” then “history” weighs in favor of nonunanimous verdicts. Duncan v. Bonta, 83 F.4th 803,
17 (9th Cir. 2023) (Bumatay, C.J., dissenting)
(quotations and citations omitted). This is because
discipline—not justice—was the driving force at the
time of the founding because the military’s law was
“that of obedience.” Parker, 417 U.S. at 744.
Indeed, the founders believed “discipline [was]
the soul of an army” and “[i]f it is not established with
wisdom and maintained with unshakable resolution
19
you will have no soldiers.” George Washington,
Instructions to Company Captains: General
Instructions to All the Captains of Companies (July 29,
1757), http://founders.archives.gov/documents/Washi
ngton/02-04-02-0223; Marshal Maurice de Saxe,
quoted in, Lt Colonel James B. Roan & Captain
Cynthia Buxton, The American Military Justice
System in the New Millennium, 52 A.F. L. Rev. 185,
192 (2002). Military discipline began well before the
Constitution and our now standing army even existed.
Parker, 417 U.S. at 745; Jonathan Turley, The
Military Pocket Republic, 97 NW. U.L. REV. 1, 6 (2002)
(“The current American military is strikingly different
from the model the Framers intended when they
established the first standing army . . . One of the
most unifying themes . . . was a deep distrust of a
‘military establishment’ and a desire to avoid a large
and semi-autonomous standing army”). As discussed
in the next section, tradition has eclipsed this history
of discipline.
c. Tradition
Weighs
Unanimous Verdicts
in
Favor
of
Since the founding, the tradition of the
military, Congress, and courts has been clear: an everevolving, professional legal system which has given
nearly complete constitutional and statutory criminal
protections to servicemembers accused of a crime.
“Tradition,” then, “demands that we don’t justify
modern regulations with reference to ‘outliers,’ . . . .
that contradict[] the overwhelming weight of other
evidence” of what the military justice system has
become: a professional, legal, and judicial system
governed by the constitution. Bonta, 83 F.4th at 18
(Bumatay, C.J., dissenting) (citation omitted). Thus,
denying servicemembers the right to unanimous
20
verdicts should not be based on the way discipline was
viewed and allowed to be enforced in the 1700 and
1800s. Or, as the CAAF stated, “since the founding of
our nation’s military justice system.” Anderson, 83
M.J. at 294. Since that time, the rights that have been
given to servicemembers are so multitudinous and
weighty as to outweigh any “history” or original public
meanings.
For example, servicemembers have been given,
inter alia, the following general rights:
• Advisement: “A servicemember’s protection
against compulsory self-incrimination is unparalleled
in the civilian sector because [t]his fundamental right
is protected by both the Fifth Amendment and Article
31, UCMJ.” United States v. Nelson, 82 M.J. 251, 255
(C.A.A.F. 2022) (quotations and citations omitted)
• Fair notice: “[T]he due process error . . . is
obvious under current law: It is well settled, and was
well settled at the time of Appellant’s court-martial,
that a servicemember must have fair notice that an
act is criminal before being prosecuted.” United States
v. Warner, 73 M.J. 1, 4 (C.A.A.F. 2013).
• Equal
protection:
“The
federal
government is prohibited from violating a person’s
due process rights by denying him the equal
protection of the laws.” United States v. Begani, 81
M.J. 273, 280 (C.A.A.F. 2021).
• Presumption
of
innocence:
“A
foundational tenet of the Due Process Clause, U.S.
Const. amend. V., is that an accused is presumed
innocent until proven guilty.” United States v. Hills,
75 M.J. 350, 356 (C.A.A.F. 2016).
21
• Meaningful opportunity to present a
defense: “Whether rooted directly in the Due Process
Clause . . . or in the Compulsory Process or
Confrontation
clauses
of
the
Sixth
Amendment . . . the Constitution guarantees criminal
defendants a meaningful opportunity to present a
complete defense.” United States v. Bess, 75 M.J. 70,
74 (C.A.A.F. 2016) (quotation and citation omitted).
• Protections against double jeopardy:
“Whether a prosecution violates double jeopardy is a
question of law that this Court reviews de novo.”
United States v. Rice, 80 M.J. 36, 40 (C.A.A.F. 2020).
• Protections against unlawful search
and seizure: “The Fourth Amendment protects
‘against unreasonable searches and seizures.’ These
constitutional protections fully apply to cell phone
searches.” United States v. Shields, 83 M.J. 226, 231
(C.A.A.F. 2023) (citation omitted).
• Protections against cruel and unusual
punishment: “Appellant must prove three elements
to establish his claim that his confinement conditions
were cruel and unusual.” United States v. Pullings, 83
M.J. 205, 211 (C.A.A.F. 2023).
These are just a small sampling of the rights
that are given in court-martial proceedings. More
relevant is that “virtually all the other provisions of
the Sixth Amendment have already been incorporated
into the military justice system:”
22
a. Right to Speedy Trial: “In the
military justice system, an accused’s
right to a speedy trial flows from
various sources, including the Sixth
Amendment, Article 10 of the Uniform
Code of Military Justice, and R.C.M.
707 of the Manual for Courts-Martial.”
United States v. Cooper, 58 M.J. 54, 57
(C.A.A.F. 2003); see also United States
v. Danylo, 73 M.J. 183, 186 (C.A.A.F.
2014).
b. Right to Public Trial: “Without
question, the [S]ixth [A]mendment
right to a public trial is applicable to
courts-martial.” United States v.
Hershey, 20 M.J. 433, 435 (C.M.A.
1985) (citation omitted)
c. Right to Confront: “We hold that
where testimonial hearsay is admitted,
the Confrontation Clause is satisfied
only if the declarant of that hearsay is
either (1) subject to cross-examination
at trial, or (2) unavailable and subject
to previous cross-examination.” United
States v. Blazier, 69 M.J. 218, 222
(C.A.A.F. 2010).
23
d. Right to Notice:
The rights at issue in this case
are constitutional in nature. The
Fifth Amendment provides that
no person shall be “deprived of
life, liberty, or property, without
due
process of
law,” U.S.
CONST. amend. V, and the Sixth
Amendment provides that an
accused shall “be informed of the
nature and cause of the
accusation,” U.S. CONST. amend.
VI. Both amendments ensure
the right of an accused to receive
fair notice of what he is being
charged with.
United States v. Girouard, 70 M.J. 5, 10
(C.A.A.F. 2011) (citations omitted); see
also United States v. Fosler, 70 M.J.
225, 229 (C.A.A.F. 2011) (applying the
protections of the Fifth and Sixth
Amendments to set aside convictions
under Article 134, UCMJ).
e. Right to Compel: “The right to
present a defense has many aspects.
Under the Compulsory Process Clause,
a defendant has a ‘right to call
witnesses whose testimony is material
and favorable to his defense.’” United
States v. Bess, 75 M.J. 70, 75 (C.A.A.F.
2016) (quoting Rock v. Arkansas, 483
U.S. 44, 52 (1987)).
24
f. Right to Counsel: “The first
question we address is when did
appellant’s right to counsel under the
[S]ixth [A]mendment attach. . . . In the
military, this sixth-amendment right
to counsel does not attach until
preferral of charges.” United States v.
Wattenbarger, 21 M.J. 41, 43 (C.M.A.
1985) (citations omitted).
g. Right to the Effective Assistance
of Counsel: “The Sixth Amendment
guarantees
a
criminal
accused,
including military service members,
the right to effective assistance of
counsel.” [United States v. Gooch, 69
M.J. 353, 361 (C.A.A.F. 2011)] (citation
omitted).
United States v. Westcott, No. ACM 39936, 2022 CCA
LEXIS 156, *117-19 (A.F. Ct. Crim. App. Mar. 17,
2022) (Meginley, J., dissenting).
Given the tradition of moving far away from
“discipline” to giving not only constitutional
protections, but also specific Sixth Amendment
protections, it is difficult to see why Ramos’s
“momentous and consequential” holding would not
apply to servicemembers. Edwards, 141 S. Ct. at 1559.
Perhaps, as the CAAF reasoned below, it is
because this Court has said, “The right to trial by jury
guaranteed by the Sixth Amendment is not applicable
to trials by courts-martial or military commissions.”
Whelchel, 340 U.S. at 127. This argument does not
account for the 73 years’ worth of rights that have
been given to servicemembers since that decision was
issued. In fact, the UCMJ did not even take effect until
25
a year after this Court decided Whelchel. Manual for
Courts-Martial (1951 ed.) at 1. Indeed, this Court
would “do a grave disservice to citizen soldiers in
subjecting them” to non-unanimous verdicts “simply
because these provisions did not offend the
sensibilities of the federal judiciary in a wholly
different period of our history.” Parker, 417 U.S. at
783 (Stewart, J., dissenting). Indeed, “[i]n today’s
vastly altered historic environment,” statements like
those in Whelchel “have become constitutional
anachronisms.” Id. (quotations and citations omitted).
But what about the “long tradition” of nonunanimous verdicts in the military? Anderson, 83 M.J.
at 294. That is the point of Ramos: “[D]espite these
seemingly straightforward [constitutional] principles”
laws like those of Louisiana, Oregon, and the military
can “hang on for so long” even though they are
incorrect. Ramos, 140 S. Ct. at 1397. Misguided
history—summary military executions, segregation in
the military, and courts-martial for homosexual
members—cannot be the justification for current law.
“Tradition,” then, can outweigh “history” and it is the
reason the tripartite analysis of text, history, and
tradition is beneficial.
There are three additional consequences that
flow from the tradition of giving increased rights to
servicemembers. First, SrA Cunningham is not
asking this Court to grant his petition to apply the
Sixth Amendment carte blanche to the military.
Rather, only the narrower question of whether “the
Sixth Amendment’s unanimity requirement” applies
to courts-martial. Ramos, 140 S. Ct. at 1397. Granting
review and answering in the affirmative would be
unsurprising given that the CAAF has already held
that an accused has a right to an impartial panel. The
26
CAAF stated, “the Sixth Amendment requirement
that the jury be impartial applies to court-martial
members and covers not only the selection of
individual jurors, but also their conduct during the
trial proceedings and the subsequent deliberations.”
United States v. Lambert, 55 M.J. 293, 295 (C.A.A.F.
2001) (citations omitted). Although the CAAF’s
decisions are not binding on this Court, it is
informative that the CAAF has seen no legal barrier
to incorporating some Sixth Amendment protections
into the military justice system. The incremental step
of adding an unanimity requirement would not hinder
the military’s mission given that other Sixth
Amendment protections have previously been given to
servicemembers.
As to the Fifth Amendment, the CAAF said, “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. Wiesen, 56
M.J. 172, 174 (C.A.A.F. 2001) (citations omitted). To
the extent that this Court believes it would need to
overrule
Whelchel,
or
other
precedents,
“Considerations in favor of stare decisis are at their
acme in cases involving property and contract rights,
where reliance interests are involved; the opposite is
true in cases such as the present one involving
procedural and evidentiary rules.” Payne v. Tennessee,
501 U.S. 808, 828 (1991) (citations omitted); see also
Ramos, 140 S. Ct. at 1409 (Sotomayor, J., concurring)
(“The force of stare decisis is at its nadir in cases
concerning [criminal] procedur[e] rules that implicate
fundamental constitutional protections.”) (citation
omitted).
Furthermore, while it is true that judicial
deference is at is “apogee” relating to legislative action
27
with the military, “deference must exist ‘within
constitutionally prescribed limits.’” Solorio v. United
States, 483 U.S. 435, 447 (1987); Students for Fair
Admissions, Inc. v. President & Fellows of Harv. Coll.,
143 S. Ct. 2141, 2168 (2023). Given this Court’s
constitutional pronouncements in Ramos, deferring to
Congress on this issue is foreclosed. Even if this Court
does not believe deferring to Congress is precluded,
the Government’s stare decisis reliance interests
“cannot outweigh the interest we all share in the
preservation of our constitutionally promised
liberties.” Ramos, 140 S. Ct. at 1408.
Second, SrA Cunningham would prevail under
an equal protection analysis. Because of the panoply
of rights given to servicemembers, they are now
“similarly situated for purposes of equal protection
analysis when it comes to evaluating nonunanimous
verdicts and their consequences.” Westcott, 2022 CCA
LEXIS 156, at *137 (Meginley, J., dissenting). This is
also because of the additional consequences
servicemembers face when convicted at a courtmartial, such as DNA processing, firearm
prohibitions,
sex
offender
registration,
and
fingerprinting requirements. This can be viewed in
SrA Cunningham’s
case
as well
as every
servicemember who is convicted at a court-martial:
28
Pet. App. at 145a. It goes without saying that if a
civilian were tried and convicted of the same offense
as SrA Cunningham—murder—the civilian would
have had the right to a unanimous verdict from 12
jurors. SrA Cunningham, however was denied a
unanimous verdict. “Both [SrA Cunningham] and the
civilian, however, would face the same [collateral]
consequences. This is not equal protection under the
law.” Westcott, 2022 CCA LEXIS 156, at *137
(Meginley, J., dissenting).
Third, and finally, because of the tradition of
giving
more
rights
to
servicemembers,
SrA Cunningham would prevail under a due process
framework. The relevant question is whether “the
factors militating in favor [additional protections] are
so extraordinarily weighty as to overcome the balance
struck by Congress.” Middendorf v. Henry, 425 U.S.
25, 44 (1976). Here, the factors weighing in favor of
unanimous verdicts are extremely weighty, namely,
deprivation of liberty. On the other hand, unanimous
verdicts do not negatively affect military operations
(as noted above), do not affect military readiness, and
29
require only a procedural change. The CAAF’s
rebuttal of this point was wrong because “voting by
secret ballots” does not protect defendants, only panel
members. Pet. App. at 084a. Also, as to hung juries
and revoting, “these are only issues if either the
Constitution or congressional legislation requires a
unanimous vote to acquit.” Westcott, 2022 CCA LEXIS
at *131 (Meginley, J., dissenting) (quotations and
citations omitted). And, of course, capital courtsmartial already have unanimous verdicts and that
has not brought the Department of Defense to its
knees. Article 52(b)(2), UCMJ, 10 U.S.C. § 852(b)(2).
3. Conclusion
This Court should grant review because
tradition has been to give servicemembers nearly all
rights that civilians enjoy in criminal trials.
Unanimous verdicts are also consistent with the plain
language of the Fifth and Sixth Amendments. The
CAAF exercised judicial humility in stating that it
would be “disingenuous” for them to ignore this
Court’s statements on the Sixth Amendment’s
application to courts-martial. Anderson, 83 M.J. at
296. However, it was also disingenuous for them not
to grapple with how the tradition of giving rights since
cases such as Whelchel has “vastly altered” the
judicial landscape in the military. Parker, 417 U.S. at
783 (Stewart, J., dissenting) (quotations and citations
omitted). This is why this Court should review the
CAAF decision. Given the changes to military law
since the 1950s—including the fact that commanders
are now removed from handling serious criminal
prosecutions—it can hardly be said “military law . . .
is a jurisprudence which exists separate and apart
from the law which governs in our federal judicial
establishment.” National Defense Authorization Act
30
for Fiscal Year 2022, Pub. L. No. 117-81 § 531, 135
Stat. 1541 (“A special trial counsel shall have
exclusive authority to determine if a reported offense
is a covered offense and shall exercise authority over
any such offense in accordance with this chapter.”);
Parker, 417 U.S. at 744 (quoting Burns v. Wilson, 346
U.S. 137, 140 (1953)).
B. This Court Should Grant Review Because the
CAAF’s Prejudice Test “Conflicts with Relevant
Decisions of this Court” and is not a “Properly
Stated Rule of Law”
At trial, Defense Counsel preserved this issue
for appeal. Pet. App. at 131a. As such, this Court can
review it de novo and the burden falls upon the
Government to prove why the erroneous PowerPoint
presentation did not affect SrA Cunningham’s
“substantial rights.” United States v. Olano, 507 U.S.
725, 734 (1993). This Court should grant review
because: (1) the CAAF is openly calling for a new
prejudice test; (2) this Court does not have
jurisprudence for preserved victim impact errors, but
analogous cases fix the defects with CAAF’s current
test; and (3) the CAAF’s prejudice test violates its
statutory mandate.
1. The CAAF is Openly Calling for a new
Prejudice Test and This Court Should
Answer
The CAAF has not only recognized the
shortcomings with its prejudice test for sentencing,
but it has also called for a new test.
In Edwards, the CAAF stated that it was
“worth noting” that its test for prejudice is
“considerably more difficult to apply to sentencing”
than it is to findings. 82 M.J. at 247. This was so
31
because “there is a binary decision to be made with
respect to the findings (guilty or not guilty)” whereas
in sentencing “there is a broad spectrum of lawful
punishments that a [factfinder] might adjudge.” Id.
Furthermore, “it is much more difficult to compare the
‘strengths’ of the competing sentencing arguments
than it is to weigh evidence of guilt.” Id. As such, the
CAAF reasoned, it is “harder for the Government to
meet its burden of showing that a sentencing error did
not have a substantial influence on a sentence than it
is to show that an error did not have a substantial
influence on the findings.” Id.
Just a year later, in August of this year, the
CAAF went further. After explaining the Barker
factors, the CAAF lamented that they “may not allow
this Court to adequately assess the prejudice arising
from the erroneous admission of sentencing evidence
or victim impact statements.” United States v.
Harrington, 83 M.J. 408, n.15 (C.A.A.F. 2023). It then
solicited: “In an appropriate case, the Court would be
open to considering whether the Barker factors should
be augmented, or whether they should be replaced by
a different analytical standard, when determining
whether such errors substantially influenced the
adjudged sentence.” Id.
In this case, the CAAF once again recognized
the “difficulty” of applying the Barker factors to
sentencing, but then lamented that it was “obligated
to use it” because of its precedent. Pet. App. at 055a.
Because of the CAAF’s entreaties, and its
inaction, this Court should exercise its “supervisory
power” to give the CAAF the proper test for
determining prejudice in sentencing. See SUP. CT. R.
10(c). This Court should not permit the CAAF to
32
bemoan the fact that its prejudice test is inadequate,
do nothing to correct it, and then use it to affirm
SrA Cunningham’s sentence.
2. The CAAF’s Prejudice Test Conflicts
with this Court’s Jurisprudence
Excluding cases on sentencing guidelines, this
Court’s jurisprudence on preserved error in sentencing
is sparse, if not non-existent. This Court should
consider granting on this issue because improper
victim impact statements are a day-to-day reality for
trial practitioners. See Emily Holland, Moving
Pictures . . . Maintaining Justice? Clarifying the Right
Role for Victim Impact Videos in the Capital Context,
17 BERKELEY J. CRIM. L. 147, 193 (2012) (“Ideally, the
Supreme Court will soon provide bright-line
standards. With such clarity, victims’ families will be
able to produce victim impact videos that avoid some
of the challenges presented in this Comment.”).
The CAAF’s prejudice test is in tension with
cases that at least serve as an analogue—nonpreserved errors and sentencing guideline cases. For
example, in Molina-Martinez v. United States, this
Court said reasonableness was the appropriate
prejudice analysis: “When a defendant is sentenced
under an incorrect Guidelines range—whether or not
the defendant’s ultimate sentence falls within the
correct range—the error itself can, and most often
will, be sufficient to show a reasonable probability of a
different outcome absent the error.” 578 U.S. 189, 198,
(2016) (emphasis added). See also United States v.
Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014)
(“When the court’s starting point is skewed a
‘reasonable probability’ exists that its final sentence is
skewed too.”) (citation omitted). In United States v.
33
Dominguez Benitez, this Court also articulated
reasonableness when it stated, “In cases where the
burden of demonstrating prejudice (or materiality) is
on the defendant seeking relief, we have invoked a
standard with similarities to the [Kotteakos v. United
States, 328 U.S. 750 (1946)] formulation in requiring
the showing of a reasonable probability that, but for
[the error claimed], the result of the proceeding would
have been different.” 542 U.S. 74, 81-82 (2004)
(quotations and citations omitted).
There are two issues that a “reasonable
probability” test would fix with the CAAF’s current
test. First, the dissent stated that by limiting the
prejudice analysis to four factors, the CAAF
“unnecessarily focus[es] more on their definitions
than on the total effects of an error.” Pet. App. at 068a.
By using the “reasonable probability” test this Court
has outlined, the CAAF would be more capable of
“rul[ing] out [the] possibility” that a military judge
increased the sentence because of erroneous evidence.
Id. This is especially true because this Court has
stated, “any amount of actual jail time is significant
and ha[s] exceptionally severe consequences for the
incarcerated individual [and] for society which bears
the direct and indirect costs of incarceration” RosalesMireles v. United States, 138 S. Ct. 1897, 1907 (2018)
(quotations and citations omitted). As the dissent in
SrA Cunningham’s case correctly pointed out, “[e]ven
if the PowerPoint presentation only added several
months to his confinement, that would still be
material prejudice to Appellant.” Pet. App. at 068a.
34
Second, a “reasonable probability” test would
ameliorate a unique facet of courts-martial: Unlike
state and federal practice, Military Judges do not
reprimand servicemembers when they sentence them
nor do they reveal their rationale for their sentence.
R.C.M. 1003(b)(1); Mil. R. Evid. 509. Thus, the dissent
was correct when they argued, “the record of a case
almost never will reveal the actual extent to which
improper evidence or unsworn statement influenced
the sentence.” Pet. App. at 066a. This is true in
SrA Cunningham’s case where the Military Judge
35
deliberated, announced his sentence, and adjourned
the proceedings:
Pet App. at 143a-44a (emphasis added).
36
This is opposed to federal and state trial where
the judge will often state why and how he or she came
to a sentence. See United States v. Agnew, No. 730535, transcript, reproduced in Ross E. Davies, Spiro
T. Agnew in his own Words, 26 GREEN BAG 2d 327, 342
(2023) (“The Court: . . . I will endeavor, gentlemen, to
state my reasons with respect to the final disposition
of the case.”); United States v. Trump, No. 23-257
(TSC), 2023 U.S. Dist. LEXIS 173165, at *5-6 (D.D.C.
Sep. 27, 2023) (“And you’re correct in that no one who
was encouraging everybody to take the Capitol has
been charged as of yet, but I don’t think that fact
means that you should get a lower sentence.”) (quoting
United States v. Palmer, Case No. 21-cr-328, ECF No.
33 at 21-22). Because Military Judges do not
reprimand or reveal their deliberations, the majority’s
test of there being “nothing in the record to support
that the Military Judge was substantially influenced
by the victim impact statement” will always be the
case. Pet. App. at 059a. Thus, an appellant will never
prevail on appeal. The irony in this case is that the
Military Judge did state that the erroneous
PowerPoint would influence him when admitting it
into evidence. Despite him saying he would give it “the
weight that it deserves” and that it was “proper victim
impact,” the majority glossed over these statements.
Pet. App. at 136a. This is further proof that an
appellant can never satisfy the majority’s standard.
3. The CAAF is Violating Article 59,
UCMJ, 10 U.S.C. § 859
The most important reason to grant review,
however, is that the CAAF is violating its statutory
obligations, which, in turn, is further prejudicing
appellants’ rights to a proper appellate review. Article
59(a), UCMJ, 10 U.S.C. § 859(a) states that a court37
martial sentence may not be held incorrect unless “the
error materially prejudices the substantial rights of
the accused.”
The dissent was correct that the four Barker
factors have put a stranglehold on the CAAF’s
statutory responsibility. “This Court has reduced the
‘material prejudice’ standard to just the four factors
listed in Barker. These factors are important to
consider but I think it was a mistake in Barker to limit
our consideration to these factors given the difficulty
of deciding whether errors during the sentencing
phase of the trial affected the sentence.” Pet. App. at
069a. The “reasonable probability” standard to assess
sentencing errors would bring the CAAF’s addled
judgment back in line with its statutory
responsibilities. Furthermore, it would allow either
party to assess prejudice “against the entire record” as
this Court has instructed because “each case
necessarily turns on its own facts.” United States v.
Young, 470 U.S. 1, 16 (1985) (citations omitted).
This Court should grant review because “the
public legitimacy of our justice system relies on
procedures that are neutral, accurate, consistent,
trustworthy, and fair, and that provide opportunities
for error correction.” Rosales-Mireles, 138 S. Ct. at
1908 (quotations and citations omitted). The CAAF’s
prejudice test does not meet this Court’s standard.
38
CONCLUSION
Unanimous verdicts and proper sentencing
tests are important questions that this Court should
resolve. This Court should adopt Justice Stewart’s
approach that “[a]n efficient and effective military
organization depends in large part upon the character
and quality of its personnel, particularly its
leadership . . . But we deal here with criminal
statutes. And I cannot believe that such meaningless
statutes as these can be used to send men to prison
under a Constitution that guarantees due process of
law.” Parker, 417 U.S. at 789 (Stewart, J., dissenting).
Just as this Court did in Ramos, it should grant
review and throw non-unanimous verdicts—once and
for all—into “the dustbin of history.” Ramos, 140 S. Ct.
at 1410 (Sotomayor, J., concurring). Servicemembers
who swear an oath to “support and defend the
Constitution of the United States” deserve nothing
less than its full protections. 10 U.S.C. § 502.
Respectfully submitted,
MAJOR SPENCER R. NELSON
Counsel of Record
United States Air Force
Air Force Appellant Defense Division
1500 West Perimeter Road, Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
spencer.nelson.1@us.af.mil
Counsel for Appellant
39
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.