Amicus Curiae Brief — Gray v. United States

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

array apo, US. |

= B

: “

oe) FEB 1S 20g

No. 00-607 OFFICE

[Capital Case] SS THE CLERK

In The

Supreme Court of the Anited States

RONALD A. GRAY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONER

Donald G. Rehkopf, Jr.

Counsel of Record

BRENNA & BRENNA

31 East Main Street, Suite 2000

Rochester, New York 14614

(716) 454-2000

Attorneys for National Association

of Criminal Defense Lawyers

11 Centre Park (4139) 107 Delaware Avenue — Suite 81

Rochester, New York 14614 Buttalo, New York 14202

(716) 232-6920 THE DAILY RECORD (716) 847-2964

AQ\

TABLE OF CONTENTS

ARGUMENT IN SUPPORT OF PETITIONER

FOR GRANTING CERTIORARI ..............

I. A CITIZEN-SOLDIER TRIED BY GENERAL

COURT-MARTIAL IN PEACETIME IN THE

UNITED STATES, IS ENTITLED TO THE

SAME MEASURE OF CONSTITUTIONAL

DUE PROCESS AS ANY OTHER CITIZEN,

BEFORE BEING SUBJECTED TO A DEATH

EEE ERT TER UL TET ROU TY Cee

A. The Fifth Amendment's Requirement That

“Nor Shall Any Person. . . Be Deprived of

Life . . . Without Due Process of Law. . . ,”

must Apply in Peacetime under the U.C.M.J.

for a Capital Offense, and must Be Construed

in Conjunction with the Article III, § 2, Cl. 3,

U.S. Constitution, Requirement That “The

Trial of All Crimes, [Except Impeachment]

me ies

B. The Impact of Federal Death Penalty

Legislation on Petitioner's Case .............

C. The “Settled Usage” Rule Compels a

Finding that in a Peacetime Capital

Court-Martial, Due Process Requires

a Twelve Person Panel ... 2... ccc cce cesses 14

Il. WHERE THE CONVENING AUTHORITY

DETAILED FIFTEEN MEMBERS TO

PETITIONER'S COURT-MARTIAL,

WITHOUT ANY OTHER LIMITATIONS

OR RESTRICTIONS, AND AFTER THE

INITIAL CHALLENGE PROCESS ONLY

SIX MEMBERS REMAINED, IT WAS

FUNDAMENTAL ERROR FOR THE

MILITARY JUDGE TO HAVE DENIED

PETITIONER'S MOTION TO ADD

ADDITIONAL COURT MEMBERS

WITHOUT SEEKING THE CONVENING

Pgs 8 gg | tre errr ee Te Tere 16

CAIPLARMIOP 6b s 60's H6 REN VERE NSE Toe ER: 19

TABLE OF AUTHORITIES

United States Constitution:

Article I, § 8, cl. 14, U.S. Const. .......-------: 8

Article Il, § 2, cl. 1, U.S. Const .......-.+--+++ 8

Article Ill, § 2, cl. 3, U.S. Const. ........-+---- 10-12

Amendment 5, U.S. Const. .......---0+-+ +e eeees 7, 10, 18

Amendment 6, U.S. Const. ........---00 220s 10

Amendment 8, U.S. Const. ........---++++5: 7, 9, 18, 19

Amendment 14, U.S. Const. ........-.--+-+555 6

Cases:

Bolling v. Sharpe, 347 U.S. 497 (1954) ......---- 19

Duncan v. Louisiana, 391 U.S. 145 (1968) ....... 18

Ex Parte Milligan, 71 U.S. 2 (1866) ......------ 5

Furman v. Georgia, 408 U.S. 238 (1972) .....--- 9,18

Hurtado v. California, 110 U.S. 516 (1884) .....- 6, 7, 14

Lee v. Madigan, 358 U.S. 228 (1959) .....------ 18

Loving v. United States, 517 U.S. 749 (1996) ..... 8, 11, 13

Martin v. Mott, 25 U.S. 19 (1827) ......----+++: 14, 16

iti

ELL oe RSE:

Middendorf v. Henry, 425 U.S. 25 (1976) ........ 6,8

Oyler v. Boles, 368 U.S. 448 (1962) ............ 18

HUGE M COVEN, FOS UD. ECIBGF) osc visas ecasets 19, 20

Rostker v. Goldberg, 453 U.S. 57 (1981) ........ 7

Thompson v. Utah, 170 U.S. 343 (1898) ......... 7

Tumey v. Ohio, 273 U.S. 510 (1927) ............ 17

United States v. Curtis, 32 M.J. 252

NG GEN ke dkee ne we tan Skee seeds es 9, 15

United States v. Matthews, 16 M.J. 354

fe eR er eer ee eee 4,9

United States v. Ramos, 42 M.J. 392 (1995) ...... 17

United States v. Wappler, 2 U.S.C.M.A. 393,

poe 8 eet ee FS eererreree Tre 9

Weiss v. United States, 510 U.S. 163 (1994) ...... 7, 8, 14

Williams v. Florida, 399 U.S. 78 (1970) ......... 7, 10, 15

Statutes:

Paes ee PE v8 60 tin hh re ns 0S ee 13

Article 16(1)(A), UCMJ, 10 U.S.C. § 816(1)(A) . .. 2

Article 18, UCMJ, 10 U.S.C. § 818 ............ 7

Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2) ... 5, 16

Article 34, UCMJ, 10 U.S.C. § 834 ............ 2

Article 36, UCMJ, 10 U.S.C. § 836 ............ 2

Article 36(a), UCMJ, 10 U.S.C. § 836(a) ........ ‘4, a2

Article 40, UCMJ, 10 U.S.C. § 840 ............ 17

Article 41, UCMJ, 10 U.S.C. § 841 ............ 2

Article 55, UCMJ, 10 U.S.C. § 855 ............ 9

Rules for Court-Martial:

Rake SOMAMEMAD, BRS oc aoc secinecscincyes 2

Rsle GAGE, RAI, con cee s caswigns Maaess 16

a SI ls 6k ak 6 beau EN ewkn sem 4,9

Treatises and Texts:

A. Amar, The Bill of Rights (1998) ............ 10

Captain Wm. DeHart, Observations on Military

Law and the Constitution and Practices of

Courts Martial (1859 ed. Wiley & Hall, NYC;

reprinted at 18 Classics in Legal History, 1973,

Wm. S. Hein & Co., Buffalo, NY) .......... 6, 11

R. Rutland, The Birth of the Bill of Rights,

1776-1791, (Classics ed., Northeastern

oe OS ee pe aye eee re

The Federalist Papers, (2nd ed., Doubleday

Anchor, Garden City, NY, 1966) ............

W. Winthrop, Military Law and Precedents

(2nd ed., G.P.O. 1920; as reprinted in

The Legal Classics Library, Gryphon

PUOON, GING, BIO) wie ceca ean edeceena

Law Reviews:

D. Sullivan, Playing the Numbers: Court-Martial

Panel Size and the Military Death Penalty,

ROO BR. Ei DO. E CES sk ae sock swe a sce

G. Henderson, Courts-Martial and the Constitution:

The Original Understanding, 71 Harv. L.Rev.

eS eee err cris oe ere

Other:

1 Op. Atty Gen. 296, 1819 U.S. AG LEXIS

Pi TNE Sooo eons os

INTEREST OF THE AMICUS CURIAE

The National Association of Criminal Defense Lawyers

[“NACDL”] is a non-profit corporation with a subscribed

membership of more than 10,000 national members, including

military defense counsel, and an additional 28,000 state, local

and international affiliate members.' The American Bar

Association recognizes the NACDL as one of its affiliate

organizations and awards it full representation in its House of

Delegates.

The NACDL was founded in 1958 to promote study and

research in the field of criminal law; to disseminate and advance

knowledge of the law in the area of criminal practice; and to

encourage the integrity, independence and expertise of defense

lawyers in criminal cases, both civilian and military. Among the

NACDL's objectives are ensuring justice and due process for

persons accused of crime, promoting the proper and fair

administration of criminal justice and preserving, protecting and

defending the adversary system and the U.S. Constitution.

The NACDL's interest in this case is two-fold.’ First, it

is a peace time death penalty case involving fundamental

Constitutional questions and issues under the Bill of Rights and

their application to America's servicemen and women. Second,

the proper and fair administration of military justice under the

Uniform Code of Military Justice [“UCMJ”] which impacts

upon these fundamental Constitutional rights, requires that this

Court be the final arbiter of what process is due to our

uniformed service members, particularly in a capital case and to

insure “Equal Justice Under Law.”

'No counsel for a party authored this Brief in whole or in part. No person,

entity or organization other than the amicus curiae made a monetary contribution to the

preparation and submission of this brief or to counsel for the NACDL.

Counsel for the Parties have consented to the NACDL filing this Brief and

these consents are on file with the Clerk.

STATEMENT OF FACTS

The NACDL accepts Petitioner's “Statement of Facts.”

We note additional relevant and undisputed factual matters in

the record which support the granting of certiorari and relief for

Petitioner. The Convening Authority’ originally detailed a panel

of fifteen prospective court members [R. la-2]. This was done

based upon the specific, legal advice of the Convening

Authority's official lawyer, his Staff Judge Advocate [“SJA”] [R.

Appellate Exhibit LIX] * After voir dire and the challenge

process,” only six members remained on the pane}. The Defense

then moved “‘as a matter of equal protection and due process, to

require that there be a panel of twelve persons and to delay this

proceeding (sic) the appointment - or the detailing of enough

members to get up to twelve.” [R. 768-69].

*In military jurisprudence, the Commander who “convenes” the court-martial,

is referred to as the “Convening Authority.” In a General Court-Martial, such as

Petitioner's, the Convening Authority also decides as applicable whether or not to

“refer” the case as capital or non-capital, and selects the panel of prospective members

under the UCMJ. See Articles 16, 18, 22 and 34 UCMJ, 10 U.S.C. §§ 816, 818, 822

and 834.

“Article 34, UCMJ, 10 U.S.C. § 834, mandates a “Pre-Trial Advice,” which

this exhibit supplemented. Thus, both the Convening Authority and his counsel,

believed that detailing a panel of fifteen members was appropriate in this capital case.

Article 16(1)(A), UCMJ, 10 U.S.C. § 816(1)(A), while setting a minimum number of

members to constitute a generic quorum for general courts-martial at five members, sets

no maximum number of members leaving that to the discretion of the Convening

Authority. Rule 501(a)(1)(A), Rules for Courts Martial (“RCM”], contained in the

Manual for Courts-Martial (“MCM”], an Executive Order promulgated pursuant to

Article 36, UCMJ, 10 U.S.C. § 836, requires that a general court-martial contain “not

less than five members.” [Emphasis added].

*Article 41, UCMJ, 10 U.S.C. § 841.

The Military Judge® in response noted:

That may be a point that, in the future, is well-

founded if the Congress thought - perhaps the

Supreme Court itself, in their infinite wisdom,

decided that's the way it should be, and I

applaud you for recording for posterity... .

The law, as it exists under the military system,

which is a system unto itself which the Congress

has elected to enact and which the Congress -

no, it was the Supreme Court - thus far at least

have blessed, is to the effect that the minimum

requirement is five officers - is five members.

We have six and we meet the criteria. [R. 769]

The prosecution’ opposed the motion, stating, “We agree with

the court in this case.” [R. 769]. The following exchange then

took place:

MJ: Well, I interrupted my thought merely because if

the government were to be of the mind that

they wanted to have twelve members, I

certainly wouldn't contest it. [emphasis added]

TC: Weare not, Your Honor.

MJ: All right. Based upon the rationalization

advanced previously, the motion for requirement

of at least twelve members is denied. [R. 770].

*Customarily and historically, the trial judge in a court-martial is referred to

as the “Military Judge,” abbreviated in the record as “MJ.”

"In military parlance a prosecutor is the “Trial Counsel,” or “TC.”

SUMMARY OF ARGUMENTS

The Petitioner was sentenced to death by a six person,

military jury. The NACDL submits that a member of the United

States military who is prosecuted in peacetime for a capital

offense, is entitled to the same measure of constitutional due

process as any other citizen prosecuted by the United States, viz.

a twelve person panel. Since neither the Uniform Code of

Military Justice,® nor the Manual for Courts-Martial,’

specifically addresses the size or number of members necessary

in a peacetime, capital case,'° one must look to both the

historical practice and constitutional jurisprudence to ascertain

what process is due. Congress delegated this authority to the

President'' who, while promulgating Rule 1004, RCM,

discussing capital cases, did not address the number of members

issue. The U.S. Court of Appeals for the Armed Forces in

United States v. Matthews, 16 M.J. 354 (C.M.A. 1983),'*

concluded that at least for peacetime military capital cases, that

military sentencing procedures must comport with civilian

constitutional standards.

Here the Convening Authority upon the advice of his

lawyer, detailed fifteen members to Gray's court-martial. But,

when the panel's size was reduced to six members after

challenges, the defense moved to “delay this proceeding” to

allow additional members detailed so as to have a jury of twelve.

It was arbitrary, capricious and constitutionally erroneous for

10 U.S.C. § 801, et seq.

*Promulgated by the President as Commander-in-Chief.

"See footnote 5, supra.

"Article 36(a), UCMJ, 10 U.S.C. § 836(a).

"That Court was previously called “The Court of Military Appeals.”

the military judge to have deferred to the Prosecutor, the very

person seeking death, on this fundamental issue. Since

Congress gave the Convening Authority the exclusive authority

to select and detail court members,'* the military judge's error

was compounded by his refusal to seek the Convening

Authority's input.

ARGUMENT IN SUPPORT OF PETITIONER FOR

GRANTING CERTIORARI

I. A CITIZEN-SOLDIER TRIED BY GENERAL

COURT-MARTIAL IN PEACETIME IN THE

UNITED STATES, IS ENTITLED TO THE SAME

MEASURE OF CONSTITUTIONAL DUE

PROCESS AS ANY OTHER CITIZEN, BEFORE

BEING SUBJECTED TO A DEATH SENTENCE.

The Constitution of the United States is a law

for rulers and people, equally in war and in

peace, and covers with the shield of its

protection all classes of men, at all times, and

under all circumstances.‘

Ronald Gray, the Petitioner, was a Soldier in the United

States Army at the time that he was sentenced to death by a six

person general court-martial panel at Ft. Bragg, North Carolina

"See Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2), which provides in

relevant part: ;

“When convening a court-martial, the convening authority shall

detail as members thereof such members of the armed forces as,

in his opinion, are best qualified for the duty by reason of age,

education, training, experience, length of service, and judicial

temperament.”

'* Ex Parte Milligan, 71 U.S. 2, at 120-21 (1866). Milligan involved an

application of “martial” law, as opposed to pure “military” law, a distinction discussed

in its concurring opinion at 141-42.

on April 12, 1988. In peacetime at least, it has long been

recognized that with the exception of the Grand Jury Clause, the

Fifth Amendment's due process guarantees apply to members of

our Armed Forces being court-martialed. One early military

commentator, Captain William DeHart, in his treatise first

published in 1846, titled, Observations on Military Law and the

Constitution and Practices of Courts Martial (1859 ed. Wiley

& Hall, NYC; reprinted at 18 Classics in Legal History, 1973,

Wm. S. Hein & Co., Buffalo, NY) [hereinafter, “DeHart”],

notes that with the exception of the Grand Jury clause:

[MJilitary courts take cognizance of such

matters as justly fall within their competency,

and proceed against offenders, according to the

language of the constitution, by “due process of

law,” which terms applied, in reference to this

subject, are convertible with those of, by the law

of the land. (emphasis in original; citing Kent's

Commentaries, vol ii, page 10).

See also, G. Henderson, Courts-Martial and the Constitution:

The Original Understanding, 71 Harv. L. Rev. 293 (1957) [Bill

of Rights applies to military unless expressly excluded].

This Court in the context of a 14" Amendment, due

process analysis traced the ancient history of the “law of the

land” and its evolution into “due process of law.” Hurtado v.

California, 110 U.S. 516, at 522 et seg. (1884). Hurtado

recognized that in evaluating due process issues, “that a process

of law, which is not otherwise forbidden, must be taken to be

due process of law, if it can show the sanction of settled usage

both in England and in this country... .” 110 U.S. at 528.

Furthermore, there can be no question that service members “are

entitled to the due process of law guaranteed by the Fifth

Amendment.” Middendorf v. Henry, 425 U.S. 25, at 43 (1976).

As the Court observed in Weiss v. United States, 510

U.S. 163, at 174 (1994), “By enacting the Uniform Code of

Military Justice in 1950, and through subsequent statutory

changes, Congress has gradually changed the system of military

justice so that it has come to more closely resemble the civilian

system.”'* Amicus does not suggest that the Fifth Amendment

due process guarantees for military members must be applied in

the same context as in civilian criminal prosecutions. Rather, we

respectfully submit that in a peacetime Capital trial by a general

court-martial, to avoid offending the Eighth Amendment's

proscription against the arbitrary imposition of the death

penalty, that the process due, i.e., a twelve person jury,"°

commands that a capital court-martial consist of twelve

members. This analytical framework was provided in Rostker

v. Goldberg, 453 U.S. 57, at 67 (1981), where this Court held:

None of this is to say that Congress is free to

disregard the Constitution when it acts in the

area of military affairs. In that area, as any

. Other, Congress remains subject to the

limitations of the Due Process Clause. . . but the

tests and limitations to be applied may differ

because of the military context. [internal

Citations omitted].

'SCf Article 36(a), UCMJ, 10 U.S.C. § 836(a), which in delegating “Pretrial,

trial, and post-trial procedures” in courts-martial to the President specifically suggests

that the President “apply the Principles of law . . . generally recognized in the trial of

criminal cases in the United States district courts. . ...”

'*We recognize that this Court has yet to interpret the Constitution as

mandating a 12 person jury in a capital case. Williams v. Florida, 399 U.S. 78 (1970),

was a non-capital case where the Florida statute at issue expressly stated , “Twelve men

shall constitute a jury to try all capital cases. . . .” 399 U.S. at 80, fn. 3. Compare,

Thompson v. Utah, 170 U.S. 343 (1898) [non-capital case decided on ex post facto

grounds]. Of relevance to this issue is the fact that Article 45(b), UCMJ, 10 U.S.C. §

845(b), bars an Accused from entering a guilty plea in a Capital case, while Article 18,

UCMJ, 10 U.S.C. § 818, precludes on jurisdictional grounds an Accused from waiving

members in a capital case. Thus, Hurtado's, Supra, “settled usage” analysis of due

Process becomes critical in resolving this case.

See also, Weiss, supra, at 176.

This case has two fundamental constitutional elements.

First, the plenary power of Congress under Article I, § 8, cl. 14,

U.S. Const., “To make Rules for the Government and

Regulation of the land and naval forces.” The second is the

President's status as Commander-in-Chief, Article II, § 2, cl. 1,

U.S. Const., to include those military powers delegated by

Congress. See, e.g., Loving v. United States, 517 U.S. 749, at

769 (1996). But, while Congress could have expressly

legislated a separate number of members for a general court-

martial in a capital case,'’ or while the President in promulgating

the Rules for Courts-Martial could also have set such a number,

they have not done so. Thus, there is no constitutional tension

here between an act of Congress or a Presidential order and the

Due Process clause. As such, the “balancing” test employed in

Middendorf, supra at 44, and in Weiss, supra at 177-78, is

inapplicable herein.

Justice Ginsburg, concurring in Weiss, notes that “men

and women in the Armed Forces do not leave constitutional

safeguards and judicial protection behind when they enter

military service.” 510 U.S. at 194.'"* That observation aptly

reflects the holding in United States v. Matthews, 16 M.J. 354

(C.M.A. 1983). Matthews reversed a peacetime death sentence,

finding that the military's procedures were constitutionally

"As noted below, historically under various versions of the Articles of War,

(including some that predated the Constitution), the number of members in a general

court-martial was not less than 13.

'8See also, Loving, supra at 774, where Justice Stevens notes, “when the

punishment may be death, there are particular reasons to ensure that the men and

women of the Armed Forces do not by reason of serving their country receive less

protection than the Constitution provides for civilians.” (Stevens, J., concurring).

Justices Souter, Ginsburg and Breyer joined this opinion.

flawed under Furman v. Georgia, 408 U.S. 238 (1972). The

Matthews’ Court stated:

[W]e see no reason why Matthews should be

executed . . . if the sentencing procedures used

by the court-martial failed to meet the Standards

established by the Supreme Court for sentencing

in Capital cases in civilian courts. There is no

military necessity for such a distinction: and we

do not believe that applying lower standards in

this case would conform to the intent of Article

5S['*] or of the Eighth Amendment. 16 MJ. at

369. [emphasis added].

The military's highest court revisited Capital

jurisprudence when it first considered United States v. Curtis,

32 M.J. 252 (C.M.A. 1991). Curtis decided in dicta that

- mnilitary capital jurisprudence did not require a twelve person

panel. 32 M.J. at 267.7! The Court's opinion fails to state why

(other than the obvious preservation issue) it rejected the twelve

member argument, other than a generic holding that “RCM

1004. . . complies with due process requirements. ...” 32 M.J.

at 269.

'* Article 55, UCMJ, 10 U.S.C. § 855. This prohibits courts-martial from

imposing “cruel and unusual punishment.” Early in its existence, the then Court of

Military Appeals held that in enacting Article 55, “Congress intended to confer as much

Protection as that afforded by the Eighth Amendment. Additionally . . . we believe that

it intended to grant protection coveri g even wider limits.” United States v. Wappler,

2 U.S.C.M.A. 393, 9 C.MLR. 23, at 26 (C.M.A. 1953), see also, Judge Fletcher's

concurring opinion in Matthews, 16 M.J. at 383.

“Curtis has a lengthy appellate history. See 33 M.J. 101 (C.M.A. 1991) [fur.

rev.; case remanded]; 44 M.J. 106 (1996) [aff'd]; 46 M.J. 129 (1997) [recon. granted:

death sentence vacated and remanded}; and 52 M.J. 166 ( 1999) [life sentence

affirmed].

*Then Chief Judge Sullivan's opinion notes that Curtis failed to object at trial

to his 9 member panel, nor did he, as Gray has done here, request the detailing of

additional members. 32 M.J. at 271 (Sullivan, C.J., concurring].

Finally, the record herein clearly shows that at trial, the

Prosecution never advanced any “military necessity” argument

or claimed any “manifest injury” would result if Gray's Motion

for a twelve member panel were granted. [R. 768] Indeed, they

could not, as the Convening Authority had detailed fifteen

members to Gray's court-martial. As the record also shows, the

final number of members, six, in Gray's case was simply the

result of an arbitrary decision by the Prosecutor - not the

Military Judge, and certainly not the Convening Authority.

A. The Fifth Amendment's Requirement That

“Nor Shall Any Person. . . Be Deprived of

Life .. . Without Due Process of Law... ,”

must Apply in Peacetime under the U.C.M.J.

for a Capital Offense, and must Be

Construed in Conjunction with the Article

Ill, § 2, Cl. 3, U.S. Constitution, Requirement

That “The Trial of All Crimes, [Except

Impeachment] Shall Be by Jury... .”

While it may be a “historical accident”™ that for non-

capital cases, twelve person juries were the standard and

therefore not a mandate of the Sixth Amendment, any analysis

of federal (to include courts-martial) criminal procedure cannot

ignore the plain language of Article III, § 2, cl. 3, of the

Constitution, i.e., that “The Trial of all Crimes . . . shall be by

Jury. . . .” [emphasis added]. This mandatory language was

“plainly understood during the ratification period as words of

obligation.”*> Thus, pre-Constitutional history is relevant in

“Williams v. Florida, 399 U.S. 78, at 102 (1970).

2a. Amar, The Bill of Rights, at 105 ( 1998) [hereinafter “Amar’], citing The

Federalist, No. 83. There Hamilton states that with respect to criminal cases, this is an

(continued...)

ascertaining what the Founding Fathers -were referring to,

especially in capital cases, as a “jury.”

[I]mbedded in the English consciousness of

liberty under law was the idea of trial by jury.

Mentioned as early as 1166 in connection with

crimes (Assize of Clarendon), by 1342 the

twelve-man English jury was a regular fixture.”

Professor Rutiand goes on to note that by 1628, Charles I “had.

reluctantly greed to the proposition that no freeman might lose

his life . . . without due process of law. .. .” Rutland, at 6.

Clearly this included the right to a trial by jury, a concept that

was imported to the American colonies.”°

Of relevance here, is this Court's recognition that it has

only been relatively recently, that courts-martial have been

authorized to try peacetime capital cases in the United States.

See, Loving, supra at 752. Indeed, DeHart's treatise on Military

Law quoted Hale's Pleas of the Crown, “one ‘who hath a

commission of martial authority doth in time of peace hang or

otherwise execute any man by color of law, it is murder”

DeHart at 12. History clearly shows that prior to the ratification

of the Constitution and the Bill of Rights, military courts-martial

mandated “members” for both the guilt and sentencing stages,

a “right” that the Framers were certainly cognizant of and which

9(...continued)

“express injunction of trial by jury in all such cases. R. Fairfield (ed.),” The Federalist

Paper:, at 257 (2™ ed., Doubleday Anchor, Garden City, NY, 1966).

*R. Rutland, The Birth of the Bill of Rights, 1776-1791, at 5 (Classics ed.,

Northeastern Univ. Press, 1983) [hereinafter, “Rutland”).

**Rutland notes that in 1676, the “fundamental laws” of West New Jersey

required a “tryal . . . by twelve good and lawful men. . . .” and that in 1683,

Pennsylvanians were tried by “a jury of twelve men.” Rutland, at 18-20.

is consistent with the right to a jury trial mandated in criminal

cases by Article III, § 2, cl. 3., U.S. Const.

The Massachusetts Articles of War, dated April 5, 1775,

provided in Article 32, “No General Court Martial shall consist

of a less number than thirteen. .. .”*° The American Articles of

War, dated June 30, 1775, provided in Article XXXIII, “No

general court-martial shall consist of less number than thirteen.

...” Winthrop, at 956. Repromulgated in 1776, the American

Articles of War, in Section XIV, Art. 1, continued the not less

than thirteen member requirement. Winthrop, at 967. This did

not change until 1786, when the size of the “standing”

Revolutionary Army had significantly decreased,”’ the Articles

of War were now amended to read, “General courts-martial may

consist of any number of commissioned officers from 5 to 13

inclusively; but they shall not consist of less than 13, where that

number can be convened without manifest injury to the

service.” Art. 1, Winthrop, at 972 [emphasis added].

When Congress enacted the American Articles of War

of 1806, it continued in Article 64, the provision from 1786,

mandating thirteen members absent a showing of “manifest

injury to the service.” Winthrop, at 981. Thus, it is clear that at

the time of the ratification of the Constitution and the Bill of

Rights, not only was the right to a jury trial secured in criminal

cases, but military members subjected to trial by general courts-

martial, were entitled to a thirteen member panel, absent a

showing of “manifest injury to the service.” Here as the Record

demonstrates, the Prosecutor never made any such claim.

*Reprinted in W. Winthrop, Military Law and Precedents (2™ ed., G.P.O.

1920; as reprinted in The Legal Classics Library, Gryphon Editions, Inc., 1988), at 950

(hereinafter, “Winthrop”).

"See, D. Sullivan, Playing the Numbers: Court-Martiai Panel Size and the

Military Death Penalty, 158 Mil. L. Rev. 1, at 5, footnotes 16 and 17 (1998)

{hereinafter “Sullivan, Numbers’).

B. The Impact of Federal Death Penalty

Legislation on Petitioner's Case.

Congress in enacting 18 U.S.C. § 3593(b), has expressly

provided for a twelve person jury in federal capital cases.”

While Amicus does not contend that this section is directly

binding on capital courts-martial, it is highly probative to a

proper analysis of Petitioner's due process issue. First, Congress

has expressly directed the President to “apply the principles of

law . . . recognized in the trial of criminal cases in the United

States district courts. . . .””” Equally as important is the fact that

by enacting § 3593, Congress has clearly expressed its intent as

to what process is due a defendant facing a federal capital

sentence, i.e., a twelve person jury.

Neither the Uniform Code of Military Justice nor the

Manual for Courts-Mariial forbids or precludes a twelve person

(or more) panel in a capital case. Thus, the Congressional intent

expressed in Article 36(a), U.C.M.J., to look to federal practice,

cannot be ignored. But as Gray's conviction and death sentence

by a six person panel shows he has, as Justice Stevens noted in

his concurrence in Loving, “received less protection” than a

civilian prosecuted for the same crimes by the United States

would have received, viz. a twelve person jury.

*This section reads in relevant part, “A jury impaneled [herein] shall consist

of 12 members, unless, at any time before the conclusion of the hearing, the parties

stipulate, with the approval of the court, that it shall consist of a lesser number.”

* Article 36(a), UCMJ, 10 U.S.C. § 836(a). Amicus acknowledges that this

provision is permissive and hence, discretionary guidance, but it is clear evidence that

Congress to the extent practicable, was looking to keep the military justice system on

a constitutional par with other federal criminal jurisprudence. See, Loving, supra at 770

for a discussion of Article 36, UCMJ, in this regard.

C. The “Settled Usage” Rule Compels a Finding that in

a Peacetime Capital Court-Martial, Due Process

Requires a Twelve Person Panel.”

At least since 1342, in Britain,*' and then later in the

American colonies, the right to a jury meant the right to a twelve

person panel. Additionally, American military jurisprudence

from pre-Constitutional times until relatively recently has clearly

expressed a preference for panels of thirteen members. Indeed,

the U-S. Attorney General in an opinion in 1819, in a capital

court-martial case noted not only this preference, but the

distinction for peacetime offenses.** History, teaches Weiss,

*°As stated in Hurtado, supra at 528, “a process of law, which is not

otherwise forbidden, must be taken to be due process of law, if it can show the sanction

of settled usage both in England and in this country... .”

*'See text accompanying footnotes 24 and 25, above.

*This provides in relevant part:

This being a case, however, of life and death ... that, by the 64"

article of the Rules and Articles of War, it is required that general

courts-martial shall not consist of less than thirteen, where that

number can be convened without manifest injury to the service.

... It is difficult to conceive an emergency in time of peace so

pressing as to disable the general officer who orders the court from

convening thirteen commissioned officers on a trial of life and

death, without manifest injury to the service. And if a smaller

number act, without such manifest emergency, I repeat that they

are not a lawful court, and an execution under their sentence

would be murder. With all the respect, therefore, which we ought

to feel for our officers, I suggest to you, sir, as a matter of legal

propriety, that, in every case of life and death at least, the

President ought to be satisfied of the manifest injury which the

service would have-sustained in convening a court of thirteen,

before he gives his sanction to a sentence of death by a smaller

number. 1 Op. Atty Gen. 296, 1819 U.S. AG LEXIS 21, at *6-7

(1819)

Martin v. Mott, 25 U.S. 19, at 34-35 (1827), held that the decision “as to the number

(continued...)

supra at 177-78, “is a factor that must be weighed” in evaluating

due process.

This Court noted in Williams, supra, at 103, with

respect to capital cases that since “no State provides for less

than 12 jurors” that fact suggested “implicit recognition of the

value of the larger body as a means of legitimating society's

decision to impose the death penalty.” Yet, in the thirty years

since Williams was decided, only the military prosecutes capital

cases with less than twelve jurors.*? Due process comparatively

and historically, if not constitutionally, requires that twelve

jurors hear capital cases at least at the guilt phase. Finally, due

process can never be satisfied when the size of a capital jury is

dependant upon the caprice of the prosecutor seeking death.™

Here, Petitioner was sentenced to death by six members. Curtis

was sentenced to death by nine members,*° a 50% larger panel,

while Sergeants Kreutzer and Quintanilli “both had twelve

member panels,”** double that of Petitioner herein! Such an

arbitrary allotment as to life or death, respectfully should not be

countenanced by this Court under any test of Due Process.

2(__ continued)

which can be convened without manifest injury to the service,” was a “matter submitted

to [the] sound discretion” of the Convening Authority.

Sullivan, Numbers, at 1.

*Id., at 15-16.

*SCurtis, 32 M.J. at 271 (Sullivan, C.J., concurring).

Sullivan, Numbers, at 4, fn. 5. For an analysis of the effect the differing

sizes have on capital cases, see Id., at 34 et seq.

II. WHERE THE CONVENING AUTHORITY

DETAILED FIFTEEN MEMBERS ' TO

PETITIONER'S COURT-MARTIAL WITHOUT

ANY OTHER LIMITATIONS OR

RESTRICTIONS[*’] AND AFTER THE INITIAL

CHALLENGE PROCESS ONLY SIX MEMBERS

REMAINED, IT WAS FUNDAMENTAL ERROR

FOR THE MILITARY JUDGE TO HAVE DENIED

PETITIONER'S MOTION TO ADD ADDITIONAL

COURT MEMBERS WITHOUT SEEKING THE

CONVENING AUTHORITY'S INPUT.

When Congress enacted Article 25(d)(2), U.C.M.J.,”* it

gave plenary authority and discretion to the Convening

Authority to “detail” the members of a court-martial using the

“best qualified” standard set out in the Article. That aspect of

military law, constitutional or not, has been settled since the

Court decided Martin v. Mott, supra in 1827. Here the

Convening Authority detailed fifteen members and there is no

evidence in the record that he gave any “instructions” per Rule

601(e)(1), R.C.M., regarding prosecutorial discretion and a

twelve member panel. At issue then is what happened after

challenges reduced the panel to six members and the Defense

moved to delay the proceedings to allow additional members to

Rule 601(e)(1), RCM, expressly provides that the Convening Authority

“may include proper instructions in the [referral] order.” Thus, if the Convening

Authority chose to delegate to the prosecutor the discretion as to whether or not to

proceed with a panel consisting of less than twelve members in this case, he could have

done so. He did not, and thus that authority remained with the Convening Authority.

Martin v. Mott, 25 U.S. 19, at 34-35 (1827).

10 U.S.C. § 825(d)(2), set out in fn. 14, supra. Amicus does not concede

the constitutionality of that statute, but mindful of the Court's desire that amici not be

duplicative, the NACDL concurs with Petitioner's arguments on that issue. We further

agree with amicus, National Institute for Military Justice, who suggest that this case

provides an optimal vehicle to resolve Article 25's constitutionality.

be detailed so as to have twelve members [R. 768-69]

Absent any “Referral” instructions from the Convening

Authority (other than as capital), and absent any codal or

regulatory prohibitions - a fact implicitly recognized by the

military judge [R. 770] - what prevented the judge from at least

seeking the Convening Authority's input? The answer lies in the

record. The judge abdicated his role by ceding to the

prosecutor the authority to decide the Defense motion, when he

stated, “[I]f the government were to be of the mind that they

wanted to have twelve members, I certainly wouldn't contest it.”

[R. 770; emphasis added]. Here the judge first ignored the plain

statutory provisions of Article 40, U.C.M.J., 10 U.S.C. § 840,

giving him the express authority to “grant a continuance to any

party for such time, and as often, as may appear just.” The

military judge by deferring this crucial decision to the very

person seeking Gray's death, totally abdicated his neutral and

impartial role - a fact that denied Gray due process in the worst

way. See generally, Tumey v. Ohio, 273 U.S. 510, at 523

(1927).

It is unprecedented in criminal litigation, much less in a

capital case, for the prosecutor to be given the choice of

whether a capital defendant has a six person or a twelve person

panel to decide his fate. This Court has long recognized that:

[I]mportant constitutional guarantees come into

play once the citizen - whether soldier or civilian

- is charged with a capital crime .... The most

*See Winthrop at 79-80, regarding “Supernumerary Members,” i.e., alternate

members. While he notes that the practice was no longer used at the time of his treatise,

such a practice here would have avoided this issue.

“Compare, United States v. Ramos, 42 M.J. 392 (1995), and cases cited

therein on judicial impartiality.

significant of these is the right to a trial by jury,

one of the most important safeguards against

tyranny which our law has designed. Lee v.

Madigan, 358 U.S. 228, at 234 (1959).

Furthermore, albeit in another context, the Court has

observed that one of the fundamental purposes of a jury trial (or

court-martial panel) was to provide a safeguard against an

“overzealous prosecutor.” Duncan v. Lou. siana, 391 U.S. 145,

at 156 (1968). Regardless of this Court's disposition of the

other issues herein. amicus urges this Court to resolve this issue

- it is constitutionally impermissible under Fifth Amendment due

process principles and Eighth Amendment concepts of

arbitrariness. Furman v. Georgia, supra. The process here of

allowing the prosecutor*' by mere objection to simply block the

accused's efforts to have the Convening Authority, the person

legally charged with “detailing” court members, appoint twelve

members in a capital case, not only reflects an abdication of

judicial responsibility, but is an arbitrary perversion of our

Constitutional system. It cannot stand in a civilized society -

civilian or military - as the key to life or death for Ronald Gray.

“This is not an issue of traditional prosecutorial discretion. Compare, Oyler

v. Boles, 368 U.S. 448 (1962).

CONCLUSIONS

Justice Harlan once observed:

So far as capital cases are concerned, I think

they stand on quite a different footing than other

offenses. In such cases the law is especially

sensitive to demands for . . . procedural fairness

which inheres in a civilian trial. ... I do not

concede that whatever process is “due” an

offender faced with a fine or a prison sentence

necessarily satisfies the requirements of the

Constitution in a capital case. The distinction is

by no means novel . . . nor is it negligible, being

literally that between life and death. Reid v.

Covert, 354 U.S. 1, at 77 (1957) (Harlan, J.,

concurring].

This case is about fundamental fairness to a citizen-

soldier who faces death, not from combat, but from a

courtroom. Amicus Curiae respectfully urges this Court to

grant certiorari to consider the fundamental due process issues

involved with the size of Petitioner's jury - half that of civilian

defendants similarly situated, and half that of two other military

capital defendants.“ The issue is preserved, systemic and

unlikely to percolate in any other Court of Appeals.

Even more compelling and in need of guidance from this

Court are the Eighth Amendment, arbitrariness issues created by

a judge who breached his judicial role and allowed the

prosecutor to interfere with Petitioner's statutory right to have

the Convening Authority select the size of his court-martial

panel. In an adversarial criminal justice system, which our

“Due process also encompasses “equal protection” concepts, Bolling v.

Sharpe, 347 U.S. 497 (1954), an issue specifically raised by Gray at trial [R. 768].

courts-martial practice surely is, to allow one of the litigants the

arbitrary power to control the size of the forum adjudicating

Petitioner's life or death,_is a miscarriage of justice of

Constitutional dimensions. |

Justice Black observed some years ago that:

Perhaps no group in the Nation has remained

truer [to the Constitution] than military men

themselves. Unlike the soldiers of many other

nations, they have been content to perform their

military duties in defense of the Nation in every

period of need and to perform those duties well

without attempting to usurp power which is not

theirs under our system of constitutional

government. Reid v. Covert, supra at 40.

NACDL as amicus curiae respectfully urges this Court

to grant certiorari on Petitioner's issues to insure that all citizens

- civilians, Soldiers, Sailors, Airmen and Marines, do not suffer

death from the Government in disparate fashions.

Respectfully submitted,

DONALD G. REHKOPF, JR.

(Counsel of Record)