# Opposition Brief — Johnson v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1828%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 823

## Text

a:
6) FILED
No. 87-1983 SUL 2k 198g
B SPANON, |
In the Supreme Court of the Gniter states —

OCTOBER TERM, 1988

NATHANIEL JOHNSON, JR., PETITIONER
Vv.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217

NORMAN G. COOPER
Col., JAGC, USA

GARY F. ROBERSON
Lt. Col., JAGC, USA

PATRICK D. O’HARE
Capt., JAGC, USA

GARY L. HAUSKEN
Capt., JAGC, USA
Appellate Government Counsel
Government Appellate Division

United States Army Legal Services Agency
Falls Church, VA 22041-5013

QUESTION PRESENTED
Whether Articles 16(1)(A) and 52(a)(2) of the Uniform
Code of Military Justice, 10 U.S.C. (& Supp. IV) 816(1)(A)
and 852(a)(2), violate the Constitution by permitting a
defendant to be convicted by the two-thirds vote of a court-
martial panel containing as few as five members.

(I)

TABLE OF CONTENTS

Page
te iy SEE a a a oe l
oe a pia was nent oeeaenas |
Ne suk iwbactencednus l
I Sa eer ee ere eee 4
ee Oe cee deduedbened's 15
TABLE OF AUTHORITIES
Cases:
Ballew v. Georgia, 435 U.S. 223 (1978) ............. 4, 5, 13
Bishop v. United States, 197 U.S. 334 (1905) ......... 8
Branford vy. United States, 356 F.2d 876 (7th Cir.
LS ES OIE SES ee 6
Burch v. Louisiana, 441 U.S. 130 (1979) ......... 4, 5, 13, 14
ER). | 7
DeWar v. Hunter, 170 F.2d 993 (10th Cir. 1948), cert.
ee ee cnc cp ecctesecees 6, 14
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) ....... 6
cme WV. BE, Sad Gsm. SOP AEDS!) 2... sew e sees. 12
Jackson v. Virginia, 443 U.S. 307 (1979) ............. 12
Johnson v. Sayre, 158 U.S. 109 (1895) ............... 6
ed | 6
King v. Moseley, 430 F.2d 732 (10th Cir. 1970) ....... 6
Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ....... 8
Mendrano v. Smith, 797 F.2d 1538 (10th Cir. 1986) ... 5, 6,
11, 14
Middendorf v. Henry, 425 U.S. 25 (1976) ............ 13
Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) ........ 6
Mullan v. United States, 140 U.S. 240 (1891) ......... 8

O'Callahan v. Parker, 395 U.S. 258 (1969) ........... 6, 15
Owens v. Markley, 289 F.2d 751 (7th Cir. 1961) ...... 6
Se, ee ee, OE? Gla, 8 COREE) oc wks eee ees 6
Rae ©. Covet, 3546 U.S. 1 (9957) .. 2... ce cece. 6
Rostker v. Goldberg, 453 U.S. 57 (1981) ............. 7
Solorio v. United States, No. 85-1581 (June 25,

a gS Se a Oa 6,7, 14
Stout v. Hancock, 146 F.2d 741 (4th Cir. 1944), cert. denied,

eee er re 10

(IV)

Cases — Continued: Page
United States v. Boland, 1 M.J. 241 (C.M.A. 1975) ... 13
United States v. Carter, 25 M.J. 471 (C.M.A. 1988) .. 4
United States v. Clarke, 25 M.J. 631 (A.C.M.R. 1987) 2
United States v. Guilford, 8 M.J. 598 (A.C.M.R. 1979),

petition denied, 8 M.J. 242 (C.M.A. 1980) ......... 13-14
United States v. Hutchinson, 17 M.J. 156, 18 M.J. 281
(C.M.A.), cert. denied, 469 U.S. 981 (1984) ........ 5
United States v. Kemp, 22 C.M.A. 152, 46 C.M.R. 152
eae ee ere ee er ilg sek ace sie aan 5
United States v. Mason, 24 M.J. 127 (C.M.A. 1987), cert.
denied, No. 86-1935 (Oct. 19, 1987) ............... 5
United States v. McClain, 22 M.J. 124 (C.M.A. 1986) . 5
United States v. Palenius, 2 M.J. 86 (C.M.A. 1977) ... 12, 14
United States v. Stocken, 17 M.J. 826 (A.C.M.R. 1984) 2
United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) 11
Williams v. Florida, 399 U.S. 78 (1970) .............. 14
Whelchel v. McDonald, 340 U.S. 122 (1950) ......... 6,7
Constitution and statutes:
U.S. Const.:
Se OM, Ms a ain's glee Sch ae oan hbk es 7
he ie ae oe yak eee yee Tae 7
eet a Lira is 3 aw addy e Cindse ba We OR Aa We 6
No i Gn ha gal Pe een wae 6
Amend. V (Due Process Clause) ................ 4, 5,6
PALE BA Neg Sat armen Sewer Pe iain ara i" 4, 5, 6, 7, 14
I 8 he ee Ne i anea ghd ee MAG 4
Act of Baar. 2, U7S9, Ce. 24, 2 SAME. FED conc cccccasss 9

Act of Apr. 23, 1800, ch. 33, § 1, Art. 41, 2 Stat. SI}. 9-10
Act of June 4, 1920, ch. 227, Art. 43, 41 Stat. 795-796 10

American Articles of War of 1776, reprinted in 1 & 2 W.
Winthrop, Military Law and Precedents, App. 961-971
(2d ed. 1920):

§ 14:
RE ge ee es at a ee 7-8
SE PER ee ee ss eee ren Cir ne ee eee ar 7)
American Articles of War of 1806, ch. 20, 2 Stat. 359:
i MY rs cs ae ae ees oe a 8

a I Oa an Pana ead be bare a 10

Fa ls: AEE hb at =

(V)

Constitution and statutes — Continued: Page

American Articles of War of 1874, reprinted in 1 & 2 W.
Winthrop, Military Law and Precedents, App. 986-996
(2d ed. 1920):

NE Ai ia bbe bud ae eR eee ae 8
ls Senger dro oes Rok or as Ce ee eta 10
American Articles of War of 1916, ch. 418, Art. 43, 39 Stat.
RE ES ae er aE OI ITE CN rer ane ar Re DY gs be 9
Uniform Code of Military Justice, 10 U.S.C. (& Supp. IV)
801 ef seq.:
Art. 16, 10 U.S.C. (& Supp. IV) 816 ......:.... 4, 9, 10
Art. 16(1)(A), 10 U.S.C. (& Supp. IV) 816(1)(A) .. 11
Art. 25, 10 U.S.C. (& Supp. IV) 825 ............ 14
Art. 25(c), 10 U.S.C. (& Supp. IV) 25(c) ......... 4
[ae Me fo ee re rere 12
Art. 34(a), 10 U.S.C. (& Supp. IV) 834(a) ....... 13
ae Pe ES ee EP Cer ree een eer 4
eR te ee a re oo Oc a ae oe ke ors 10
Art. 52(a)(2), 10 U.S.C. 852(a)(2) .. 2.2... oe. 11
Art. 60, 10 U.S.C. (& Supp. IV) 860 ............ 13
Fame, GD, Gib Wits TG ov wk ct awakens ca wen 12
we Oe RR ee RT Teper Cero err eee 2
pe 3 RR YS el | ee rs eres |

British Articles of War, reprinted in 1 & 2 W. Winthrop,
Military Law and Precedents, App. 931-960 (2d ed. 1920):

§ 15:
AGES WER kiko ROAR TET ee y
BRR oh ce ee ee ee 9
Miscellaneous:
5 J. Continental Cong. (W. Ford ed. 1906):
MQ sh wtace Chen WeESOR AES Taare eee tat 8
ee ee ee ee rire i He et ye
22 J. Continental Cong. 325 (G. Hunt ed. 1914) ...... 8
30 J. Continental Cong. (J. Fitzpatrick ed. 1934):
ee TE PS eh ht ee Aki 8
a Brey ere re re yt on rr en ba at ee 8
H.R. Rep. 491, 81st Cong., Ist Sess. (1949) 2.2.0... 10

(V1)

Miscellaneous — Continued: Page
Henderson, Courts-Martial and the Constitution: The
Original Understanding, 71 Harv. L. Rev. 293 (1957) 6
A. Macomb, A Treatise on Martial Law and Courts-Martial
CE. edo ha ea ek deen oer ae ae Rae e eee )

Manual for Courts-Martial, United States— 1984 ....2, 10, 11

Moyer, Procedural Rights of the Military Accused: Advant-
ages Over a Civilian Defendant, 22 Me. L. Rev. 105
SEAS kako kauhs see ee eee hael bd eee ee ees) 13

R. Scott, The Military Law of England (1810) ......

Uniform Code of Military Justice (No. 37): Hearings on
H.R. 2498 Before a Subcomm. of the House Comm. on

Armed Services, 8\st Cong., Ist Sess. (1949) ....... 10
Van Loan, The Jury, the Court-Martial, and the Constitu-
tion, 57 Cornell L. Rev. 363 (1972) ............... 6, 8,9

| & 2 W. Winthrop, Military Law and Precedents (2d ed.
SUD non 96000-050050840500045sNasenbwennseed 7, 8, 9, 10

Jn the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1983
NATHANIEL JOHNSON, JR.. PETITIONER
Wa

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the Court of Military Appeals affirming peti-
tioner’s conviction (Pet. App. la) is reported at 26 M.J. 222.
The order of the Army Court of Military Review (Pet. App.
2a-3a) is not officially reported.

JURISDICTION

The judgment of the Court of Military Appeals was
entered on April 4, 1988. The petition for a writ of certiorari
was filed on June 3, 1988. The jurisdiction of this Court
is invoked under 28 U.S.C. (Supp. IV) 1259(3).

STATEMENT

Petitioner, a member of the United States Army, was con-
victed by court-martial of premeditated murder and the
unlawful possession of a murder weapon, in violation of
Articles 118 and 134 of the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 918 and 934. Petitioner was sentenced

(1)

mw

to confinement for life, a reduction in pay grade, forfeitures
of all pay and allowances, and a dishonorable discharge. '
The convening authority reviewed the case and approved
the sentence. The Army Court of Military Review affirmed
the findings and sentence (Pet. App. 2a-3a). The Court of
Military Appeals summarily affirmed (Pet. App. la).

1. Petitioner was convicted of the premeditated killing
of Sergeant Aaron Britton. The facts were not in dispute;
petitioner’s sworn confession (GX 5) was admitted at trial
without defense objection (Tr. 17, 216-218). The defense
claim was that petitioner was guilty only of voluntary man-
Slaughter (Tr. 279).

At 9:30 p.m. on December 5, 1987, petitioner was in his
barracks room at Fort Eustis in Virginia. Sergeant Britton
entered petitioner’s room and accused petitioner of
spreading the rumor that Sergeant Britton was dating
Private Tracy Johnson (Tr. 165; GX 5).? Petitioner denied

' The convening authority elected to refer petitioner to a court-martial
that was not authorized to impose the death penalty (Tr. 10). Manual
Jor Courts-Martial, United States — 1984 (Manual), Rules for Court-
Martial 201(f 1 MA) and 601(c). The minimum punishment for
premeditated murder is confinement for life. Art. 118, UCMJ, 10
U.S.C. 918. Although a two-thirds vote was necessary to convict peti-
tioner, a three-fourths vote was necessary to impose a sentence of life
imprisonment, even though that penalty was-mandatory under the
UCM J. Rule 1006(d), Manual. That difference is immaterial in this case,
however, because four of the five panel members had to concur in the
judgment regardless of whether a two-thirds or three-fourths majority
vote requirement is applied.

> Sergeant Britton and Private Tracy Johnson were members of the
same unit. Private Tracy Johnson testified that petitioner told her that
he intended to tell the platoon sergeant about the relationship between
her and Sergeant Britton (Tr. 207). Carrying on a relationship with a
military subordinate could damage Sergeant Britton’s professional
reputation and could violate the Uniform Code of Military Justice under
some circumstances. See United States v. Clarke, 25 M.J. 631
(A.C.M.R. 1987); United States v. Stocken, 17 M.J. 826 (A.C.M.R

1984).

the charge. The incident ended with Sergeant Britton tell-
ing petitioner that if he continued to spread the rumor, they
would “handle it like men” (Tr. 165-166, 167; GX 5).

Shortly thereafter, Sergeant Britton arranged for peti-
tioner to be called out of the room purportedly to answer
a telephone call (Tr. 171; GX 5). The lights in the hall out-
side the room were turned out as part of the plan (Tr. 171).
After answering the phone, petitioner was attacked by
Sergeant Britton, and perhaps Privates Mayrant and Con-
ners (Tr. 171-173; GX 5). Petitioner and Sergeant Britton
fell to the floor and wrestled until petitioner was able to
break free (Tr. 172; GX 5). Sergeant Britton then went to
the opposite end of the hall, while petitioner returned to
his room (Tr. 135, 151, 172; GX 5).

By his own admission, petitioner was angry (GX 5). He
“stopped for awhile” and thought to himself (/bid.). Then,
after “look{ing] into the mirror and t[aking] a deep breath,”
he grabbed his survival knife and went to find Sergeant Brit-
ton (ibid.). Petitioner walked quickly up the hallway,’ tur-
ning on lights and repeating, “I don’t play that shit, they
don’t do that to me” and “I’m going to kill him” (Tr. 110,
125, 136, 152-154, 172). Specialist Allen stopped petitioner
and suggested that they discuss the matter (Tr. 110-111).
Petitioner replied, “no, I’m gonna get him” (Tr. 111).* Peti-
tioner walked past Allen toward Sergeant Britton (ibid.).
As he approached the sergeant, petitioner thrust his knife
forward, piercing Sergeant Britton’s heart and killing him
(Tr. 112, 152-154; GX 9).

' Petitioner walked approximately 66 feet to return to his room trom
the fight (GXs 1, 5). He traveled an additional 198 teet trom his room
to the point where he stabbed Sergeant Britton (GX 2B)

* Private Joyce Tucker had spoken with petitioner earher in the day
She testified that petitioner had told her “something was going down
in the unit tonight,” and that “if anybody messed with him they would
get ut” (Tr. 150)

4

2. Seven potential panel members? were detailed to peti-
tioner’s court-martial (Tr. 27). One was challenged for cause
by the government, since she had prior knowledge of the
case (Tr. 87-88). Another was peremptorily challenged by
the government (Tr. 89). The defense did not challenge any
of the remaining members (Tr. 88-89).° The defense moved
the trial judge to empanel six members to hear the case and
to determine whether the verdict was unanimous (Tr. 91,
234-237, 320-322). The trial judge denied both motions (Tr.
91-92, 323-324).

ARGUMENT

In Ballew v. Georgia, 435 U.S. 223 (1978), the Court held
that the Sixth and Fourteenth Amendments require that at
least six persons serve on the jury in serious state criminal
cases. In Burch v. Louisiana, 441 U.S. 130 (1979), the Court
ruled that the verdict by such a six-person jury must be
unanimous. Relying on Ballew and Burch, petitioner main-
tains that his conviction by a potentially nonunanimous five-
member court-martial panel violates the Due Process Clause

> All the court members were officers (Tr. 1). Petitioner did not ex-
ercise his right to request that one-third of the court members be from
the enlisted ranks. Art. 25(c), UCMJ, 10 U.S.C. (& Supp. IV) 825(c).
Under the circumstances of this case, such a request could not be denied.
Ibid.

®° The prosecution and defense are entitled to one peremptory
challenge each as a matter of right. Art. 41, UCMJ, 10 U.S.C. 841;
compare United States v. Carter, 25 M.J. 471 (C.M.A. 1988) (trial judge
may award an accused additional peremptory challenges to ensure a
fair trial). Had petitioner exercised his peremptory challenge in this case,
the number of members would have been reduced to four. Because a
general court-martial must have at least five members, Art. 16, UCMJ,
10 U.S.C. (& Supp. IV) 816, the exercise of a peremptory challenge
by the defense would have required the convening authority to detail
sufficient additional members to create a panel of at least five members.

of the Fifth Amendment.’ That claim does not warrant
review by this Court, for several reasons.*®

1. There is no conflict among the circuits on the ques-
tion presented by petitioner. The Court of Military Appeals
has consistently rejected the contention that the court-
martial system adopted by Congress is invalid under Ballew
v. Georgia, supra, and Burch v. Louisiana, supra, on the
ground that a defendant may be convicted by a five-member
court-martial panel, or by the two-thirds vote of a panel
of any size. United States v. Mason, 24 M.J. 127, 128 &
n.* (C.M.A. 1987), cert. denied, No. 86-1935 (Oct. 9, 1987);
United States v. Hutchinson, 17 M.J. 156, 156-157, 18 M.J.
281 (C.M.A.), cert. denied, 469 U.S. 981 (1984); see United
States v. McClain, 22 M.J. 124, 128 (C.M.A. 1986); United
States v. Kemp, 22 C.M.A. 152, 154, 46 C.M.R. 152, 154
(1973) (the Sixth Amendment cross-section requirement is
inapplicable to court-martial panels). The decisions of that
court are consistent with the decision of the only federal
court of appeals to address this question in light of Ballew
and Burch. Mendrano v. Smith, 797 F.2d 1538, 1544-1547
(10th Cir. 1986).

2. In addition, the decision below is also correct. The
statutes governing the number of members on court-martial
panels and the number that must concur to return a verdict
do not offend either the Fifth or Sixth Amendments to the
Constitution.

? The Uniform Code of Military Justice does not provide a means
of discovering the actual vote of the panel members. Thus, it is unknown
whether petitioner was in fact convicted by a unanimous vote of the
panel or by a vote of four to one.

§ This Court has previously denied certiorari in several other cases
presenting substantially the same question. Mason v. United States, cert.
denied, No. 86-1935 (Oct. 19, 1987); Delacruz v. United States, cert.
denied, No. 86-1675 (May 18, 1987); Dodson v. United States, cert.
denied, No. 86-407 (Dec. 8, 1986); Garwood v. United States, cert.
denied, 474 U.S. 1005 (1985); Hutchinson v. United States, cert. denied,
469 U.S. 981 (1984).

6

a. Petitioner seeks to impose on courts-martial the same
requirements that Art. III, § 2, Cl. 3, and the Sixth Amend-
ment impose in civilian cases. It is well settled, however,
that the right to a jury trial guaranteed by those provisions
does not apply to court-martial proceedings. Ex parte
Milligan, 71 U.S. (4 Wall.) 2, 123 (1866); Dynes v. Hoover,
61 U.S. (20 How.) 65, 79 (1858).° The Fifth Amendment
specifically exempts “cases arising in the land or naval
forces” from the requirement of an indictment by a grand
jury for serious crimes.'® By drafting the Fifth Amendment
in that manner, “the framers of the constitution, doubtless,
meant to limit the right to trial by jury, in the sixth amend-
ment, to those persons who were subject to indictment or
presentment in the fifth.” Ex parte Milligan, 71 U.S. (4
Wall.) at 123. As the Court explained in Ex parte Quirin,
317 U.S. 1, 39 (1942), neither Section 2 of Article III of
the Constitution nor the Sixth Amendment requires a trial

® See also O'Callahan v. Parker, 395 U.S. 258, 261 (1969), overruled
on other grounds, So/orio v. United States, No. 85-1581 (June 25, 1987);
Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality opinion); Whelchel v.
McDonald, 340 U.S. 122, 127 (1950); Ex parte Quirin, 317 U.S. 1, 40-41
(1942); Kahn v. Anderson, 255 U.S. 1 (1921); Mendrano v. Smith, 797
F.2d at 1544; King v. Moseley, 430 F.2d 732, 734 (10th Cir. 1970); Bran-
ford v. United States, 356 F.2d 876, 877 (7th Cir. 1966); Owens v.
Markley, 289 F.2d 751, 752 (7th Cir. 1961); see DeWar v. Hunter, 170
F.2d 993, 997 (10th Cir. 1948), cert. denied, 337 U.S. 908 (1949) (court-
martial panel composed exclusively of officers to try an enlisted man
does not violate the Sixth Amendment); see generally Van Loan, The
Jury, the Court-Martial, and the Constitution, 57 Cornell L. Rev. 363
(1972); Henderson, Courts-Martial and the Constitution: The Original
Understanding, 71 Harv. L. Rev. 293 (1957).

'© Petitioner erroneously suggests (Pet. 10-11 n.4) that the exception
for “cases arising in the land or naval forces” applies only when a case
arises “in actual service in time of war or public danger.” The latter
phrase refers only to the “Militia” of the states, not to the “land or naval
forces” of the United States. Johnson v. Sayre, 158 U.S. 109 (1895).

7

by jury in the military, because those provisions were in-
tended “to preserve unimpaired trial by jury in all those cases
in which it had been recognized by the common law * * *,
but not to bring within the sweep of the guaranty those cases
in which it was then well understood that a jury trial could
not be demanded as of right.” Accordingly, because peti-
tioner had no Article III or Sixth Amendment right to a
trial by a petit jury, he also had no right under those provi-
sions to a unanimous vote by a jury composed of at least
Six persons.

b. Petitioner’s claim fares no better under the Due Pro-
cess Clause. The Constitution authorizes Congress to “make
Rules for the Government and Regulation of the land and
naval Forces” (Art. I, § 8, Cl. 14) and grants Congress
“primary responsibility for the delicate task of balancing
the rights of servicemen against the needs of the military.”
Solorio v. United States, No. 85-1581 (June 25, 1987), slip
op. 12; see also Burns v. Wilson, 346 U.S. 137, 140 (1953)
(plurality opinion). Congress’s judgment about the composi-
tion and voting procedures of a court-martial is entitled to
special deference, not only because “[t]he constitution of
courts-martial, like other matters relating to their organiza-
tion and administration * * *, is a matter appropriate for
congressional action” (Whelchel v. McDonald, 340 U.S. 122,
127 (1950) (citations omitted)),'! but also because the prac-
tices at issue have been carried forward from the earliest
days of our nation. See Solorio-v. United States, slip op.
7-11.

The nation’s first military law was the American Articles
of War of 1776. 1 & 2 W. Winthrop, Military Law and
Precedents 46, App. 961-971 (2d ed. 1920). Section 14,

'! See also, e.g., Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981) (the
decisions of Congress are entitled to particular deference when they
involve “Congress’ authority over national defense and military affairs”).

8

Art. 1, provided that at least 13 officers would serve on

general courts-martial (i.e., a president and 12 members). ~

5 J. Continental Cong. 800 (W. Ford ed. 1906); 1 & 2 W.
Winthrop, supra, App. 967. In 1782, Congress substantially
adopted the English practice for naval courts-martial of
detailing five officers to a court-martial in a capital case
and three in a noncapital case. 22 J. Continental Cong. 325
(G. Hunt ed. 1914). Four years later, when large numbers
of desertions and an understaffing of officers had become
a particularly acute problem for commanders at frontier out-
posts, Congress amended the American Articles of War to
permit a quorum of five officers at a general court-martial
and three officers at regimental courts-martial when 13
members could not be detailed “without manifest injury to
the service.” 30 J. Continental Cong. 145, 316 (J. Fitzpatrick
ed. 1786); 1 & 2 W. Winthrop, supra, at 22-23, App. 972;
Van Loan, The Jury, the Court-Martial, and the Constitu-
tion, 57 Cornell L. Rev. 363, 384-385 n.118 (1972). That
language was merely advisory to the officer responsible for
appointing the members of a court-martial, however, and
his decision to select a small number of members was both
lawful and conclusive. Martin v. Mott, 25 U.S. (12 Wheat.)
19, 34-35 (1827).!?

Congress endorsed that practice throughout the nine-
teenth century and the early part of the twentieth century
when revising the Articles of War. 1 & 2 W. Winthrop,
supra, at 77, 159; American Articles of War of 1806, ch.
20, Art. 64, 2 Stat. 367, reprinted in 1 & 2 W. Winthrop,
supra, App. 981-982; American Articles of War of 1874,
Art. 75, reprinted in 1 & 2 W. Winthrop, supra, App. 992;

'2 See also Bishop v. United States, 197 U.S. 334, 339-340 (1905);
Mullan v. United States, 140 U.S. 240, 245 (1891) (convening officer’s
determination that trial by members junior in rank to the accused could
not be avoided was proper).

se

te Se etl ne

9

American Articles of War of 1916, ch. 418, Art. 43, 39 Stat.
657. In the aftermath of World War II, Congress replaced
the Articles of War with the Uniform Code of Military
Justice. In so doing, Congress retained the requirement of
a quorum of five members for general courts-martial, as
well as the convening authority’s discretion to detail a greater
number of panel members, the system that exists today. Art.
16, UCMJ, 10 U.S.C. (& Supp. IV) 816.

History also shows that unanimity has never been a
feature of court-martial proceedings.'? The American Ar-
ticles of War of 1776, like their predecessor, the British Ar-
ticles of War,'* required only a simple majority vote to con-
vict a defendant, and a two-thirds majority to sentence him
to death. Articles of War of 1776, § 14, Art. 5, reprinted
in 5 J. Continental Cong. 801 (W. Ford ed. 1906); 1 & 2
W. Winthrop, supra, at 377, App. 968; A. Macomb, A
Treatise on Martial Law and Courts-Martial 144 (1809).
Congress thereafter repeatedly endorsed similar majority
vote requirements in statutes passed in 1799, 1800, 1806,
and 1874.'5 Throughout the nineteenth century, a majori-

'3 During the Revolution, the Continental Congress adopted the
British naval regulations for use by the Continental Navy. The British
regulations provided for courts-martial similar to the general courts-
martial under the British Articles of War, which required only a sim-
ple majority to convict and sentence a defendant. Van Loan, supra,
57 Cornell L. Rev. at 382 & n.102.

'4 The British Articles of War required a vote of 9 of 13 court-martial
members to impose the death penalty. 1 & 2 W. Winthrop, supra, App.
943, § 15, Art. VIII. The Articles of War did not specify the number
of votes necessary to convict a defendant at a general court-martial or
to impose any sentence other than death. The Articles of War, however,
provided that inferior courts-martial “shall give Judgment by the Ma-
jority of Voices.” 1 & 2 W. Winthrop, supra, App. 943, § 15, Art. XII;
see R. Scott, The Military Law of England 131 (1810).

'S Act of Mar. 2, 1799, ch. 24, 1 Stat. 709 (An Act for the Govern-
ment of the Navy of the United States); Act of Apr. 23, 1800, ch. 33,

10

ty vote of the panel members was sufficient to convict a
defendant of a noncapital crime, with a two-thirds vote suf-
ficient to impose capital punishment. 1 & 2 W. Winthrop,
supra, at 377; Stout v. Hancock, 146 F.2d 741, 742-743 (4th
Cir. 1944), cert. denied, 325 U.S. 850 (1945).

Early in the twentieth century, Congress modified the
voting requirements for Army courts-martial, requiring a
unanimous vote to impose the death penalty or to convict
a defendant of a crime carrying a mandatory death penal-
ty. Act of June 4, 1920, ch. 227, Art. 43, 41 Stat. 795-796;
Stout v. Hancock, 146 F.2d at 741-743. For all other crimes,
conviction still required only a two-thirds majority. At the
same time, the voting requirements for courts-martial in the
Navy were left untouched. Thus, only a simple majority was
necessary to convict a sailor, and a two-thirds majority to
impose the death penalty. See H.R. Rep. 491, 81st Cong.,
Ist Sess. 26, 491, 74 (1949). When considering the UCMJ
following World War II, Congress rejected the suggestion
that the unanimous vote requirement be extended to non-
capital crimes,'® and instead adopted Article 52 of the
UCM§J, 10 U.S.C. 852, in substantially its present form.

Congress has modified the Code on more than 20 occa-
sions since Articles 16 and 52 were enacted, but it has never
changed the composition or voting procedures for non-
capital cases tried by a court-martial.'’ In sum, it is clear

§ 1, Art. 41, 2 Stat. 51 (An Act for the Better Government of the Navy
of the United States); the American Articles of War of 1806, ch. 20,
Art. 87, 2 Stat. 369, reprinted in 1 & 2 W. Winthrop, supra, App. 984;
the American Articles of War of 1874, Art. 96, reprinted in 1 & 2 W.
Winthrop, supra, App. 994.

'6 See Uniform Code of Military Justice (No. 37): Hearings on H.R.
2498 Before a Subcomm. of the House Comm. on Armed Services,
8ist Cong., Ist Sess. 565, 1081-1082 (1949).

'? In 1984, Congress enacted amendments to the UCMJ to coincide
with proposed changes to the Manual for Courts-Martial. Concur-

LEE See Re IE A NES PAGAL 6 MI nt

ob reer ee ea

11

that the five-member, two-thirds majority vote procedures
in Articles 16(1)(A) and 52(a)(2) of the UCMJ, 10 U.S.C.
(& Supp. IV) 816(1)(A) and 852(a)(2), represent the
longstanding and considered judgment of Congress and the
President on the proper balance to be struck between the
rights of an individual serviceman and the special needs of
the armed forces.

That judgment is also reasonable. The essential function
of the military is “to fight or be ready to fight wars should
the occasion arise.” United States ex rel. Toth v. Quarles,
350 U.S. 11, 17 (1955). When servicemembers are diverted
from that function by the need to serve as panel members,
“the basic fighting purpose of armies is not served.” /bid.
Congress therefore has determined that the diversion of
resources necessary to conduct the retrials that would result
from a unanimous verdict requirement was too high a price
to pay in terms of lost military preparedness. Accordingly,
Congress provided for only one trial, at which a two-thirds
majority vote would decide the outcome.

That system does not exclusively favor the prosecution.
The rule that no retrials are permitted in the military if there
is a “hung jury” provides a defendant with “a significant -
recompense” for the disadvantages of a nonunanimous ver-
dict. Mendrano v. Smith, 797 F.2d at 1546. Moreover, as
a safeguard against an inaccurate verdict by a court-martial
panel, the military courts have required the prosecution in-
dependently to prove the defendant’s guilt before a court
of military review. The standard of review applied by a court

rently, the President, acting pursuant to his rule-making authority,
promulgated the current Manual, which significantly changed courts-
martial practice. In 1986, the President again amended the Manual by
requiring that findings of guilty to premeditated murder in capital cases
be unanimous. Rule 1004, Manual. Notwithstanding these revisions,
neither the President nor Congress required unanimity in other
situations.

12

of military review to determine whether the evidence is suf-
ficient to support the defendant’s conviction is substantial-
iy different from, and more generous to, military defendants
than the standard employed by civilian appellate courts. A
civilian appellate court does not inquire whether it believes
that the evidence is sufficient to prove the defendant’s guilt
beyond a reasonable doubt, but instead only determines
“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). By contrast, a court of military
review must independently review the record and be con-
vinced of the correctness of the court-martial panel’s find-
ings, including its ultimate finding that the accused is guil-
ty, before the findings may be upheld. Art. 66(c), UCMJ,
10 U.S.C. 866(c).'8

In addition to the more exacting standards of appellate
review, the military defendant enjoys greater rights than his
civilian counterpart at the pretrial and post-trial stages of
the proceedings. No charge may be referred to a general
court-martial for trial without an impartial investigation into
the evidence supporting the charge. Art. 32, UCMJ, 10
U.S.C. 832. This procedure includes the right of the accused
to be represented by counsel. A convening authority may
not refer a charge to a general court-martial for trial

'8 A court of military review may affirm “only such findings of guil-
ty * * * as it finds correct in law and fact and determines, on the basis
of the entire record, should be approved.” Art. 66(c), UCMJ, 10 U.S.C.
866(c). Although nothing in the text of the statute or its legislative
history suggests that the courts of military review must independently
apply the “beyond a reasonable doubt” standard to the record when
reviewing the sufficiency of the evidence (see Jackson v. Taylor, 353
U.S. 569, 577 & n.8 (1957)), the military courts have read that stan-
dard into the act. E.g., United States v. Palenius, 2 M.J. 86, 91 n.7
(C.M.A. 1977).

13

without independently assessing the sufficiency of the |
evidence. Art. 34(a), UCMJ, 10 U.S.C. (Supp. IV) 834(a). °
After trial, the convening authority receives a report of the
trial, and he may disapprove findings of guilt or reduce the
sentence as a matter of clemency or as a prerogative of com-
mand. Art. 60, UCMJ, 10 U.S.C. (& Supp. IV) 860. To
assist the convening authority, the accused has the right to
submit legal arguments and other matters with respect to
the findings and sentence. /bid. See generally, United States
v. Boland, 1 M.J. 241 (C.M.A. 1975); Moyer, Procedural
Rights of the Military Accused: Advantages Over a Civilian
Defendant, 22 Me. L. Rev. 105 (1970). In light of these
special protections against the risk of inaccurate verdicts
in the military justice system, petitioner has not made the
“extraordinarily weighty” case necessary to Overcome the
longstanding congressional judgment that the court-martial
system satisfies due process requirements. Middendorf v.
Henry, 425 U.S. 25, 44 (1976).

c. The lead opinion in Ballew v. Georgia, supra, relied
heavily on empirical studies of the group dynamics of juries
in ruling that a six-person jury was required. 435 U.S. at
231-243 (opinion of Blackmun, J.). Much the same reason-
ing formed the basis for the ruling in Burch v. Louisiana
that a six-person jury must be unanimous. 441 U:S. at 138.

~.. Petitioner argues (Pet. 8-9) that the studies considered in

Ballew should also inform the decision here. Those studies
all involved civilian juries, however, and there are no com-
parable studies addressing the dynamics of court-martial
panels. In light of the important functional and composi-
tional differences between civilian juries and court-martial
panels, the studies on which this Court relied in Burch and
Ballew are not immediately applicable to the military set-
ting. United States v. Guilford, 8 M.J. 598, 601-602
(A.C.M.R. 1979), petition denied, 8 M.J. 242 (C.M.A.

14

1980).'® The question whether studies of the type considered
in Ballew are sufficiently compelling, when applied to the
military setting, to justify a change in court-martial pro-
cedures is one that should be left to Congress.

3. Petitioner suggests (Pet. 4, 11-12) that this Court’s
recent decision in Solorio v. United States, supra, requires
a different result. He argues that the procedures at issue
may have been permissible before So/orio, but are no longer
justified now that the Court has altered the service-
connection restriction on courts-martial. That argument is
misdirected.

The Solorio decision did not abolish the service-
connection requirement; it merely reaffirmed the traditional
principle that an offense is sufficiently service-connected
for purposes of court-martial jurisdiction if the defendant
is a servicemember at the time of the commission of the
crime and at trial. The effect of So/orio is not to convert
the military justice system into one closely analogous to a

'? In Burch, the Court concluded that juries must have at least six
members, in part “to provide a fair possibility that a cross section of
the community would be represented.” 441 U.S. at 135, citing Williams
v. Florida, 399 U.S. 78, 100 (1970). That goal is inapplicable to courts-
martial. The members of a civilian jury are selected at random to repre-
sent a cross-section of the commurity. By contrast, the members of
a court-martial panel are deliberately chosen on the basis of their
qualifications to sit as panel-members. Art. 25, UCMJ, 10 U.S.C. (&
Supp. IV) 825. The members of a court-martial panel are drawn ex-
clusively from the same profession as the defendant, and they have a
specialized knowledge of its workings and expectations. Accordingly,
the failure randomly to select a court-martial panel from a pool of all
servicemen, including enlisted personnel with the same rank as the
defendant, is not unconstitutional. DeWar v. Hunter, 170 F.2d at 997
(panel composed exclusively of officers to try an enlisted man does not
violate Sixth Amendment); United States v. McClain, 22 M.J. at 128
(Sixth Amendment cross-section requirement inapplicable to court-
martial proceedings); see Mendrano v. Smith, 797 F.2d at 1544-1547.

a

15

civilian system, in which Fifth and Sixth Amendment prin-
ciples apply just as they do in the civilian courts. Solorio
simply restored court-martial jurisdiction to a class of cases,
not covered during the 18-year period following O'Callahan
v. Parker, 395 U.S. 258 (1969), consisting of certain cases
in which the crimes were committed by servicemembers off
the premises of military bases. The rules regarding the
number and voting requirements of court-martial panels
were adopted prior to the Court’s decision in O’Callahan,
not during the period between O'Callahan and Solorio.
Moreover, there is no historical or logical connection be-
tween the service-connection restriction, as applied in
O'Callahan, and the court-martial rules at issue here. The
decision in Solorio therefore has no effect on the validity
of those rules in the military justice system.

CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.

CHARLES FRIED
Solicitor General
NORMAN G. COOPER
Col., JAGC, USA
GARY F. ROBERSON
Lt. Col., JAGC, USA

Patrick D. O'HARE
Capi., JAGC, USA

GARY L. HAUSKEN
“‘apt., JAGC, USA
Appellate Government Counsel
Government Appellaie Division
United States Army Legal Services Agencs

JULY 1988

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1828%3A2. Public record. Not legal advice.