# Amicus Curiae Brief — Gray v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1441%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 919

## Text

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No. 00-607 OFFICE
[Capital Case] SS THE CLERK

In The

Supreme Court of the Anited States

RONALD A. GRAY,

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

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

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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

il

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

iv

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

vi

11

11

12

12

14

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.

2

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.”

3

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.”

4

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.

7

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.

8

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].

9

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...)

10

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.

11

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’).

12

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.

13

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...)

14

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.

15

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.

16

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.

17

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).

18

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].

19

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)

BRENNA & BRENNA

31 East Main Street, Suite 2000

Rochester, New York 14614

(716) 454-2000

Attorneys for National Association
of Criminal Defense Lawyers
February 2001

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1441%3A5. Public record. Not legal advice.