A military judge has required a jury in Germany to reach a unanimous decision to convict an Army officer facing sexual assault charges, marking the first time that high bar has been required for a guilty verdict in a court-martial.
The move would put the court-martial on par with civilian court standards and a Supreme Court ruling, but on Wednesday military prosecutors successfully requested an Army appeals court to pause the trial.
In a pretrial decision, Col. Charles Pritchard, an Army judge in Kaiserslautern, Germany, ordered that any guilty verdict must be unanimous in the case of Lt. Col. Andrew Dial, who has been charged with three counts of sexual assault.
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Despite the legal wrangling, the unusual order is unlikely to herald a broader change in the military justice system and its prosecution of sex crimes, an expert told Military.com.
"It's pretty rare for a military judge to make that gutsy of a ruling," said Eric Carpenter, a former military lawyer who is now an assistant law professor at Florida International University. "I think this ruling itself is not going to be super critical, because it's probably just going to apply to this case."
At the heart of the issue is an April 2020 Supreme Court ruling that the Sixth Amendment requires guilty verdicts in civilian criminal trials to be unanimous. At the time of the ruling, Oregon was the only state that allowed non-unanimous guilty verdicts.
Under the Uniform Code of Military Justice, a court-martial requires a three-fourths vote for conviction.
Supreme Court decisions about civilian law generally do not apply to military law because of separate rulings that have held military justice is a matter for Congress. But since the Supreme Court ruling in Ramos v. Louisiana, lawyers for defendants in dozens of courts-martial have filed motions seeking to have the unanimous verdict standard apply to their cases.
In his ruling Monday, Pritchard did not agree that Ramos applies to courts-martial since previous rulings have found the Sixth Amendment right to trial by jury does not apply to the military.
But the judge did agree with defense lawyers that a non-unanimous guilty verdict would violate Dial's due process rights under the Fifth Amendment.
"The consequences of conviction at a special or general court-martial are no less serious than for civilian criminal convictions," Pritchard wrote.
"There is no apparent or logical reason for the disparate treatment" between civilian and military defendants, he added. "It appears that the non-unanimous verdict in courts-martial simply slipped into congressional legislation pertaining to military justice without much thought."
The ruling did not contain details of the allegations against Dial, nor did the defense and prosecution briefs on the motion or an Army court docket.
Government prosecutors had argued that requiring a unanimous verdict in military trials could result in more hung juries and retrials, as well as leave jurors open to reprisal from commanders since their votes will be known.
On Wednesday, the Army Court of Criminal Appeals granted the government's request to pause the trial, which had been scheduled to start Monday, pending an appeal of Pritchard's order for a unanimous verdict. However, Carpenter said it would be "really, really difficult" for the government to appeal.
In dozens of other cases, defendants are asking for unanimous verdicts and judges are denying those motions, and Carpenter said he expects the issue to work its way through appeals courts.
Ultimately, though, Carpenter said he does not foresee an appeals court ruling making unanimous guilty verdicts the standard across the military justice system.
"Ultimately, they will come out and say, 'That's not for us to decide, that's up to Congress to decide,'" he said.
Congress has been moving to make the military justice system more closely resemble civilian courts, particularly when it comes to sexual assault cases.
Under the defense policy bill signed into law last week by President Joe Biden, cases of sexual assault and related crimes for the first time will largely be handled by independent prosecutors rather than military commanders. Some in Congress have pushed to go even further and take almost all serious crimes entirely out of the chain of command.
Carpenter said that, while requiring unanimous guilty verdicts would be "perfectly consistent" with the reform Congress has already undertaken to bring military justice closer to the civilian system, he does not foresee much support for raising the standard for guilty verdicts.
Doing so could mean fewer convictions at a time when lawmakers are aiming for more sexual assault convictions, he said.
"While there's the sexual assault problem that's in the forefront for everybody, I think even liberals who tend to want more protective rules for defendants aren't going to go that far because there will be fewer sexual assault convictions," he said. "At the end of the day, we'll probably end up back right where we started."
-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.
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