Johnson v. United States Petition for a Writ of Certiorari to the US Court of Military Appeals

    No. _

in  t\)t Supreme Court of tfje Bmteb £§>tate$
October Term , 1987

Nathaniel Johnson, J r.
P rivate, United States Army, petitioner,

V.

United States of America, respondent.

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

John T. Edwards 
Colonel, JAGC
Chief Appellate Defense Counsel 

Defense Appellate Division 
U.S. Arm y Legal Services Agency 
N assif Building 
Falls Church, Virginia 22041 
(70S) 756-0583 
Counsel of Record 

Joel D. Miller 
Lieutenant Colonel, JAGC 
Appellate Defense Counsel 

Marion E. Winter 
Major, JAGC 
Appellate Defense Counsel

William J. Kilgallin 
Captain, JAGC 
Appellate Defense Counsel



QUESTION PRESENTED

Whether the provisions of Articles 16(1)(A) and 52(a)(2) of the 
Uniform Code of Military Justice violate the Due Process 
Clause of the Fifth Amendment by failing to require a 
unanimous verdict from a court-martial of at least six 
members.

(I)





TABLE OF CONTENTS

Page

Opinions below ..............................................................  1
Jurisdiction . ................................................................... 1
Constitutional and Statutory Provisions Involved . . .  2
Statement of the C ase .................................................... 2
Reasons for Granting the W rit.....................................  3

I. PETITIONER HAS STANDING TO CLAIM
THAT THE PROVISIONS OF ARTICLE 
52(a)(2), UCMJ, VIOLATE HIS DUE PROC­
ESS RIGHTS .................................................. 4

II. THE PROVISIONS OF ARTICLE 16(1)(A)
AND 53(a)(2), UCJM, VIOLATE THE DUE 
PROCESS CLAUSE OF THE FIFTH 
AMENDMENT BY FAILING TO RE­
QUIRE A UNANIMOUS VERDICT FROM 
A COURT-MARTIAL OF AT LEAST SIX 
M EM BERS........ .............    5

Conclusion ....................................................................... 15
Appendix A ....................................................................  l a
Appendix B ....................................................................  2a

TABLE OF AUTHORITIES

Cases:
Ake v. Oklahoma, 470 U.S. 68 (1985).................... 6, 8, 14
Apodoca v. Oregon, 406 U.S. 404 (1972)..............  11
Ballewv. Georgia, 435 U.S. 223 (1978)............ 6, 8, 9, 11
Burch v. Louisiana, 441 U.S. 130 (1978)........ 6, 8, 9, 11
Burns v. Wilson, 346 U.S. 137 (1953)................... 11
Courtney v. Williams, 1 M.J. 267 (CMA 1976) . . .  11
Gosa v. Mayden, 413 U.S. 665 (1973)................... 12
Johnson v. Louisiana, 406 U.S. 356 (1972)..........  11
McKeiver v. Pennsylvania, 403 U.S. 528 (1971) . . 6
Medrano v. Smith, 797 F.2d 1538 (10th Cir.

1986) ....................................................................  5

(III)



IV

Cases-Continued: Page
O’Callahan v. Parker, 395 U.S. 258 (1969)..........  12
Soloriov. UnitedStates,___ U .S.____ , 167 S.Ct.

2924 (1987) ............................... .................... .. 4, 12
United States v. Cleveland, 6 M.J. 939 (ACMR

1979) .................................     11
United States v. Clay, 1 USMCA 74, 1 CMR 74,

(1951) .................      10
United States v. Guilford, 8 M.J. 598 (ACMR 

1979) pet. denied 8 M.J. 242 (CMA 1980) . . . . . .  12
United States v. Lamela, 7 M.J. 277 (CMA

1979) . ...............    11
United States v. McClain, 22 M.J. 124 (CMA

1986) ...........................................................   6
United States v. Wolff, 5 M.J. 923 (NCMR 1978) . 12
Williams v. Florida, 399 U.S. 78 (1970)............... 8

Constitution and Statutes:
U.S. Constitution

Amend. V (Due Process Clause)................ 4, 5, 8, 11
Amend. V I ............ ...........................................5, 8, 10

Uniform Code of Military Justice, 10 U.S.C.
§ 801 et seq

Art. 16, 10 U.S.C. 816 ............. ........................  6, 10
Art. 25, 10 U.S.C. 825 . . .  ...............................  12
Art. 51,10 U.S.C. 8 5 1 ............................. .. 4
Art. 52, 10 U.S.C. 852 . . .  ...............................  4, 6, 7
Art. 60, 10 U.S.C. 860 . . . . .  ................... .. 3
Art. 92, 10 U.S.C. 892 .....................................  3
Art. 118, 10 U.S.C. 918 ........................... .. 3, 7

Miscellaneous:
Hearings on H.R. 2498 before a Subcommittee of 

the Committee on Armed Services, 81st Cong. 
1st Sess. (1949) .................................................... 5



V

Miscellaneous -  Continued: Page
Manual for Courts-Martial, United States, 1984,

Rules for Courts-Martial (R.C.M.),
R.C.M. 9 2 1 ..............................    4
R.C.M. 922 ..........................    4
R.C.M. 1004 ...................................................... 7

Military Justice Act of 1983, Pub.L.No. 98-209,
97 Stat. 1393 ........................................................ 12

Military Rules of Evidence
Mil.R.Evid. 606 ...............................................  4

War Department Advisory Committee on Mili­
tary Justice, Report of (1946).............................  5



M  tf)c Supreme Court of tf)c Unitetr g>tate£
October Term, 1987

N o ._____
Nathaniel J ohnson, J r.

P rivate, United States Army, petitioner,
V.

United States of America, respondent.

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

The petitioner, Nathaniel Johnson Jr., respectfully re­
quests that a writ of certiorari issue to review the judgment 
and opinion of the United States Court of Military Appeals 
entered in this proceeding.

OPINIONS BELOW

The opinion of the Court of Military Appeals, rendered 
without oral argument, is reported at Docket No. 59,438, 
___ M.J_____(C.M.A. April 4, 1988), and is reprinted at Ap­
pendix A. The decision of the Army Court of Military Review 
is unreported, ACMR 8700268 (A.C.M.R. Nov. 30, 1987) (un­
pub.) and is reprinted at Appendix B.

JURISDICTION

The jurisdiction of the Court is invoked under 28 U.S.C. 
1259(3) (Supp. IV 1986).

(1)



2

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

The Constitution of the United States provides:
Amendment V: No person . . . shall be deprived of liberty 
or property, without due process of law.
Amendment VI: In all criminal prosecutions, the accused 
shall enjoy the right to . . .  an impartial jury.

The Uniform Code of Military Justice [hereinafter UCMJ], 10 
U.S.C. § 801 et seq. (1982 and Supp. IV 1986) provides:

Article 16: The three kinds of courts-martial in each of 
the armed forces are-(l) general courts-martial, con­
sisting of (A) a military judge and not less than five 
members.
Article 52(a)(2): No person may be convicted of any other 
offense, except as provided in section 845(b) of this title 
(Article 45(b)) or by the concurrence of two-thirds of the 
members present at the time the vote is taken.
Article 52(b)(2): No person may be sentenced to life im­
prisonment or to confinement for more than ten years, 
except by the concurrence of three-fourths of the 
members present at the time the vote is taken.

Statement of the Case
On December 5, 1986, petitioner was lured out of his room 

on the pretense of a telephone call. Once in the hallway, the 
lights were turned off and petitioner was beaten by a group 
of soldiers. Petitioner subsequently returned to his room and 
obtained a knife. He then returned to the hallway and con­
fronted one of his attackers, Sergeant Britton. In the course 
of that confrontation, Sergeant Britton was fatally stabbed 
(R. 171-175). On February 4 and 5, 1987, petitioner was tried 
at Fort Eustis, Virginia, before a general court-martial com­
posed of officer members. Contrary to his pleas, he was found 
guilty of premeditated murder (noncapital) and violation of a 
lawful general regulation in contravention of Article 118 and



3

92, UCMJ, 10 U.S.C. §§ 918 and 892 (1982), respectively. 
Petitioner was sentenced to a dishonorable discharge, con­
finement for the rest of his natural life, forfeiture of all pay 
and allowances and reduction to Private (E-l). The convening 
authority approved the sentence pursuant Article 60, UCMJ, 
10 U.S.C. § 860.

After voir dire and challenge of court members, the pane! 
in petitioner’s court-martial consisted of five officer 
members. Before trial on the merits began, petitioner’s 
defense counsel objected to a court composed of only five 
members. The military judge overruled the objection (R. 91). 
Defense counsel subsequently requested that if the members 
found petitioner guilty of premeditated murder, the military 
judge should determine whether the vote on findings was 
unanimous (R. 317-318). This request was also denied (R. 
323). The constitutional question involved was litigated at 
trial and at every stage of the appellate process. The issue 
granted by the Court of Military Appeals, as a prerequisite to 
this Court’s jurisdiction, was as follows:

WHETHER THE MILITARY JUDGE ERRED TO 
THE SUBSTANTIAL PREJUDICE OF APPELLANT 
IN PERMITTING APPELLANT TO BE TRIED FOR 
PREMEDITATED MURDER BY A COURT-MARTIAL 
COMPOSED OF ONLY FIVE MEMBERS AND IN 
FAILING TO DETERMINE IF THE FINDINGS 
WERE UNANIMOUS.

REASONS FOR GRANTING THE WRIT

Petitioner has been condemned to spend the rest of his 
natural life in confinement by a process which has been 
deemed inherently suspect and constitutionally infirm for 
every jurisdiction in the United States, save one. This Court 
has held that a five-member jury is unconstitutional per se 
and that findings of a six member jury must be unanimous. 
Petitioner was convicted of premeditated murder and man- 
datorily sentenced to life imprisonment by a nonunamious 
five-member jury.



4

The basis upon which military courts have distinguished a 
soldier’s due process protections from those afforded every 
other American citizen has been vitiated by the Court’s deci­
sion in Solorio v. United States, ___ U .S .____ , 107 S.Ct.
2924, 97 L.Ed.2d 364 (1987). In Solorio, the Court greatly ex­
panded court-martial jurisdiction and expressly declined to 
consider the issue of a due process claim since such had not 
been raised at the Court of Military Appeals. 107 S.Ct. at 
2933, n.18. Petitioner’s due process claim has been litigated 
at every stage of trial and appeal and offers this Court the op­
portunity to establish the basic parameters of minimum due 
process in military criminal jurisdiction.

I.
PETITIONER HAS STANDING TO CLAIM THAT THE 
PROVISIONS OF ARTICLE 52(a)(2), UCMJ, VIOLATE 
HIS DUE PROCESS RIGHTS.

Article 51(a), UCMJ, 10 U.S.C. § 851(a), requires that the 
members of a court-martial vote on findings by secret written 
ballot. The votes are counted by the junior member and 
checked by the president, who is the senior member. Article 
52(a)(2), U.C.M.J., 10 U.S.C. § 852(a)(2), requires that only 
two-thirds of the members need concur in order to render a 
guilty verdict. See also Manual for Courts-Martial, United 
States, 1984 [hereinafter M.C.M., 1984], Rules for Courts- 
Martial [hereinafter R.C.M.] 921. “Except as provided in 
Mil.R.Evid. [Military Rule of Evidence] 606, members may 
not be questioned about their deliberations and voting.” 
R.C.M. 922(e), MCM, 1984. Thus, polling of court-martial 
members is prohibited. As a result, petitioner was denied the 
opportunity to ascertain the numerical composition of the 
verdict on findings.

The Article and Rule for Court-Martial requiring a secret 
ballot, in effect, insulate Article 52(a)(2), UCMJ, from due 
process scrutiny. Petitioner submits that the secret ballot 
provisions were never intended to permit this result. Rather, 
secret balloting was intended to shield the court-martial 
members from unlawful command influence. Congress has



5

long been concerned that court-martial members may be sub­
ject to unlawful command influence. See Hearings on H.R. 
2498 before a Subcommittee of the Committee on Armed 
Services, 81st Cong. 1st Sess. 628, 640-641, 825-26, and 1075 
(1949); Report of War Department Advisory Committee on 
Military Justice, 6-7 (1946) (committee investigated com­
mander’s control of courts-martial during World War II and 
concluded that it was necessary to limit commanders’ in­
fluence of court-martial members). Legislation designed to 
protect court-martial members from unlawful command con­
trol should not now be allowed to deny petitioner an oppor­
tunity to litigate a question of fundamental due process.

Petitioner should not be denied standing because the 
numerical composition of the verdict was not preserved for 
appeal. This is especially true since petitioner made a timely 
motion to determine whether the verdict was in fact 
unanimous. Accordingly, this Court should presume that 
petitioner’s verdict was less than unanimous and that peti­
tioner suffered prejudice. Cf Mendrano v. Smith, 797 F.2d 
1538, 1540 n .l (10th Cir. 1986) (“Since, as required by the 
Uniform Code of Military Justice the court-martial voted by 
secret ballot, our record does not reveal the number of votes 
for conviction. However, we consider the two-thirds rule’s 
validity because it did apply to this trial and assume only two- 
thirds, or four members of the court-martial voted for convic­
tion”).

II.
THE PROVISIONS OF ARTICLES 16(1)(A) AND 52(a)(2), 
UCMJ VIOLATE THE DUE PROCESS CLAUSE OF THE 
FIFTH AMENDMENT BY FAILING TO PROVIDE A 
UNANIMOUS VERDICT FROM A COURT-MARTIAL OF 
AT LEAST SIX MEMBERS.
A. Minimum Due Process Requires a Unanimous Verdict 
of at Least Six Members.

The Due Process Clause requires a unanimous verdict of a 
six member fact-finding body in any non-petty criminal pros­



6

ecution. In Burch v. Louisiana, 441 U.S. 130 (1979), the 
Court held that a less than unanimous verdict from a six- 
member jury was unfair and unconstitutional.' Citing Ballew 
v. Georgia, 435 U.S. 223 (1978) (five-member jury is un­
constitutional per se). In Ballew, the Court stressed that at 
“some point, [the] decline in jury size leads to inaccurate fact­
finding and the incorrect application of the common sense of 
the community to the facts .’’Ballew, 435 U.S. at 232. Accord­
ingly convictions, where unanimity is not required of fact­
finding bodies composed of six or fewer members, are unfair 
and violate due process.

In Ake v. Oklahoma, 470 U.S. 68, 79 (1985), the Court 
reasoned, “[t]he State’s interest in prevailing at trial-unlike 
that of a private litigant—is necessarily tempered by its in­
terest in the fair and accurate adjudication of criminal cases.” 
The same compelling interest in ensuring accurate findings 
of fact applies to the parties in courts-martial.

B. Due Process in the M ilitary Context Does N ot Justify
Less Than a Unanimous Six Member Verdict.

Courts-martial have not been subject to the jury trial 
demands of the Constitution. United States v. McClain, 22 
M.J. 124, 128 (C.M.A. 1986). The Due Process Clause never­
theless requires that criminal trial procedures foster accurate 
fact-finding and fundamental fairness. See McKeiver v. Penn­
sylvania, 403 U.S. 528, 543 (1971). Military members accused 
of crimes and the Government of the United States share a 
compelling interest in the accurate disposition of criminal 
charges. Cf Ake v Oklahoma, 470 U.S. at 79.

To facilitate fact-finding at general courts-martial, Con­
gress has provided that such courts, designed to dispose of 
non-petty offenses, consist of “not less than five members.” 
Art. 16(1)(A), UCMJ, 10 U.S.C. § 816(1)(A). In a noncapital 
case, only two-thirds of such members need concur in a find­
ing of guilty. Art. 52(a)(2), UCMJ, 10 U.S.C. § 852(a)(2). On 
the other hand, both Congress and the President have re­
quired a higher standard for findings in capital cases. When 
the death penalty is mandatory, the findings of “not less than



7

five members” must be unanimous. Art. 52(a)(1), UCMJ, 10 
U.S.C. § 852(a)(1). The President, acting under statutory 
authority, has recently provided that the non-mandatory im­
position of the death penalty may be considered only after the 
entry of unanimous findings. R.C.M. 1004(a)(2), MCM, 198J,h1 
Neither Congress nor the President has required unanimous 
findings for noncapital premeditated or felony murder, the 
two findings for which Congress has nonetheless required the 
mandatory imposition of life imprisonment. Art. 118, UCMJ, 
10 U.S.C. § 918. Accordingly, while the less stringent, 
nonunanimous findings of five members prevents the death 
penalty from being imposed on petitioner, such non­
unanimous findings nevertheless provide the basis for imposi­
tion of a mandatory sentence to confinement for life.

The Congressional and Presidential procedures for find­
ings and sentence at courts-martial recognize, at least for im­
position of the death penalty, the well-established due process 
concept that the procedural protection afforded depends to a 
large extent upon the interests at stake.2 They fail to 
acknowledge, however, the compelling interest of both peti­
tioner and the United States that no accused, including peti­
tioner, be found guilty of an infamous crime and be deprived 
of his liberty for the rest of his life on the basis of unreliable 
findings.3 Thus, the deliberative process of petitioner’s court- 
martial must be scrutinized under the test adopted to resolve 
criminal due process concerns. The test balances three fac­
tors.

The first is the private interest that will be affected by 
the action of the State. The second is the governmental

1 This provisions became effective in February 1986. App. 21, R.C.M. 
1004(aX2), MCM, 1984.

2 Congress also partially applies this concept by requiring a three-fourths 
rather than a two-thirds vote of the members for any sentence to confine­
ment in excess of ten years. Art. 52(b)(2), UCMJ, 10 U.S.C. § 852(b)(2). The 
only exception to this rule is where mandatory life imprisonment is the 
minimum punishment.

3 The court members are not instructed and may not consider that a ver­
dict of guilty to premeditated murder automatically results in a sentence to 
life imprisonment in a noncapital case.



8

interest that will be affected if the safeguard is to be pro­
vided. The third is the probable value of the additional or 
substitute procedural safeguards that are sought, and the 
risk of an erroneous deprivation of the affected interest if 
those safeguards are not provided.

Ake v. Oklahoma, 470 U.S. at 77.
Petitioner’s private interest in the accuracy of the findings 

at trial, which placed his life and liberty at risk, is “uniquely 
compelling.” Ake v. Oklahoma, 470 U.S. at 78. Such an in­
terest weighs heavily in the balancing analysis. Id.

To weigh the second and third factors, it must be deter­
mined what additional or substitute procedural safeguards 
petitioner seeks. Petitioner objected to a court-martial of less 
than six members (R. 91). Petitioner relied, inter alia, on the 
sixth and fourteenth amendment holdings in Ballew and 
Burch that five-person as well as nonunanimous six-person 
juries may not constitutionally convict a defendant for a non- 
petty criminal offense. Petitioner also relied on the Due Proc­
ess Clause and the holdings of Ballew and Burch to the extent 
they are predicated upon due process concerns as well as 
sixth amendment considerations (R. 91).

A fact-finding body of only five persons, whether composed 
of private citizens or soldiers, produces results so unreliable 
as a matter of law that the Due Process Clause is violated. 
The Court reached this conclusion in Ballew based upon em­
pirical data compiled after its decision in Williams v. Florida, 
339 U.S. 78 (1970), upholding the use of a six-person jury. 
Ballew v. Georgia, 435 U.S. at 239. Relying on this data, the 
Court reached specific findings that:

[Progressively smaller juries are less likely to foster ef­
fective group deliberation. At some point, this decline 
leads to inaccurate factfinding. The risk of convicting an 
innocent person . . . rises as the size of the jury 
diminishes . . . .  [T]he verdicts of jury deliberation in 
criminal cases will vary as juries become smaller, and . . .



9

the variance amounts to an imbalance to the detriment of 
one side, the defense . . . .  [T]he presence of minority 
viewpoints [diminishes] as juries decrease in size. When 
the case is close, and the guilt or innocence of the defend­
ant is not readily apparent [larger juries] will insure 
evaluation by the sense of the community and will also 
tend to insure accurate factfinding.

Ballew v. Georgia, 435 U.S. at 232-38. The evidence indicates 
that as the size of juries diminishes to five and below, the risk 
of conviction of innocent defendants increases. 435 U.S. at 
234-35. Unanimity of five-person juries does not remedy the 
sixth amendment infirmities. A unanimous five-person jury 
cannot assure that the group engages in meaningful delibera­
tion and truly represents the sense of the entire community. 
435 U.S. at 241. Savings in time and money do not justify the 
State’s interest in five-person juries. 435 U.S. at 243-44.

The Court relied on the same rationale in Burch:
[M]uch the same reasons that led us in Ballew to decide 
that use of a five-member jury threatened the fairness of 
the proceeding and the proper role of the jury, lead us to 
conclude now that conviction for a non-petty offense by 
only five members of a six-person jury presents a similar 
threat to preservation of the substance of the jury trial 
guarantee and justifies our requiring verdicts rendered 
by six-person juries to be unanimous.

Burch v. Louisiana, 441 U.S. at 138. Once again, the Court 
rejected the S tate’s justification that the use of 
nonunanimous six-person juries saved time and money. 441 
U.S. at 139.

In the case sub judice, the military judge articulated the 
following justification for his ruling:

[T]he objection is denied based on the fact that the 
Manual permits the five member court that is the 
minimum number in a General Court-Martial, of course



10

such as we have today. In my opinion, this is not constitu­
tionally impermissible.

(R. 92). This ruling ignores the specific language of Article 
16, UCMJ, 10 U.S.C. § 816, one basis for due process in 
military courts. Further, it ignores the empirical data relied 
on in Ballew.

First, the jurisdictional requirement of Article 16, UCMJ, 
is for “not less than five members.” Nothing in that language 
evidences a Congressional intent that there shall be no more 
than five members assembled as a general court-martial. 
Therefore, the statute in no way prohibited the military 
judge, in safeguarding fundamental fairness, from ordering 
the detail of additional members to assure accurate fact­
finding where appellant was on trial for an infamous offense 
which mandates the loss of his liberty for the rest of his life.

Second, the provisions of the UCMJ do not alone define due 
process for courts-martial.

Generally speaking, due process means a course of legal 
proceedings according to those rules and principles 
which have been established in our system of 
jurisprudence for the enforcement and protection of 
private rights. For our purposes, and in keeping with the 
principles of military justice developed over the years, we 
do not bottom those rights and privileges on the Con­
stitution. We base them on the laws as enacted by Con­
gress. But, this does not mean that we can not give the 
same legal effect to the rights granted by Congress to 
military personnel as do civilian courts to those granted 
to civilians by the Constitution or by other federal 
statutes.

United States v. day , 1 USCMA 74, 1 CMR 74, 77 (1951). Ac­
cordingly, even though petitioner may have no sixth amend­
ment entitlement to trial by jury,4 the requisites of

4 Petitioner asserts that all United States citizens are entitled to the ex­
plicit protections of the Bill of Rights, and his status as a soldier does not 
deprive him of the right to a jury “in all criminal prosecutions.” It is clear 
that only the right to grand jury indictment is expressly denied to soldiers



1 1

due process for civilian trials give meaningful definition to 
the protections to be afforded petitioner. The Due Process 
Clause has always applied to court-martial procedure. Burns 
v. Wilson, 346 U.S. 137, 142-43 (1953). Further, the Court of 
Military Appeals has adopted the requirement that a party 
who urges a different rule than the one prevailing in the 
civilian community bears the burden of demonstrating that 
unique military conditions dictate the rule. Courtney v. 
Williams, 1 M.J. 267, 270 (CMA 1976).

Petitioner was entitled to evaluation of the facts by that 
sense of the community which would tend to insure accurate 
fact-finding. SeeBallew v. Georgia, 435 U.S. at 238. Unanimi­
ty of six-person juries is required to ensure that a sense of the 
community stands between the zealous prosecutor or biased 
judge. Burch v. Louisiana, 441 U.S. at 135-37. In the 
military, there is even a greater need for procedural 
safeguards to stand against the zealous or biased military 
commander. Verdicts based on votes of 10-2, 9-3 and 6-0 are 
sufficient to serve this function. See generally Apodoca v. 
Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 
356 (1972). Those based on votes of 4-1 or 4-2 are not. Burch 
v. Louisiana, 441 U.S. at 135-37.

The Army Court of Military Review has long considered 
the reasoning of this Court as enunciated in Ballew and 
Burch inapposite to trial by courts-martial. That court had 
relied on the very restrictive nature of court-martial jurisdic­
tion to remedy the constitutional infirmities of courts- 
martial:

It cannot be gainsaid that the military trial must be fair 
and impartial. See e.g., United States v. Lamela, . . .  7 
M.J. [277] at 278: United States v. Cleveland, 6 M.J. 939, 
942 (A.C.M.R. 1979). The trial is, however, by a unique, 
military tribunal that is essentially different from the 
jury envisioned by the Sixth Amendment. The composi­
tion of courts-martial is different, as the members are

“when in actual service in time of war or public danger.’’ U.S. Const, 
amend. V. An American soldier is neither an indentured servant nor a 
second-class citizen.



12

drawn exclusively from the accused’s own profession 
based on specified qualifications (one of which is judicial 
temperament), with specialized knowledge of the profes­
sion, and subject to only one challenge other than for 
cause. Their functioning differs, too. For example, it in­
cludes the questioning of witnesses and the determining 
of sentences. In view of such compositional and func­
tional differences, the studies relied upon in Ballew and 
Burch are inapposite. United States v. Wolff, . . .  5 M.J. 
[923] at 925. The differences between the institution of 
courts-martial and the institution known as a jury have 
been recognized as necessary as well as constitutional. 
O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 
L.Ed.2d 291 (1969). When the use of courts-martial has 
impinged on constitutional rights, the remedy has been to 
limit the exercise of their jurisdiction rather than to alter 
the nature of the tribunal, for courts-martial are not fun­
damentally unfair. Gosa v. Mayden, 413 U.S. 665, 93 
S.Ct. 2926, 37 L.Ed.2d 873 (1973).

United States v. Guilford, 8 M.J. 598, 602 (ACMR 1979), pet. 
denied, 8 M.J. 242 (CMA 1980). The bedrock of this legal 
reasoning has been rendered fatally flawed by this Court’s 
decision in Solorio, 107 S.Ct. 2924, which expressly abandons 
any limitation on military jurisdiction over soldiers as set out 
in O’Callahan v. Parker,5

Further, while there is a compositional and functional dif­
ference between military jurors and their civilian counter­
parts, such does not excuse a denial of due process protec­
tions. Article 25, UCMJ, 10 U.S.C. § 825 requires convening 
authorities to appoint court members who are best qualified 
by reason of age, education, training, experience, length of 
service and judicial temperament. Rather than excuse 
nonunanimous verdicts, the extraordinary composition of 
military juries demands that anything less than a unanimous

5 Congress’ decision to place military tribunals directly under Supreme 
Court scrutiny also evidences a congressional desire that military courts 
parallel civilian courts unless military necessity dictates the contrary. See 
Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393.



13

six-member verdict be considered unreliable per .sc, since the 
opinion of one such “blue ribbon” military fact-finder must be 
given substantially more credence than the dissenting opinion 
of one civilian juror.

The size of a five-member court-martial alone renders 
group deliberation less effective. The risk of an erroneous 
conviction is still greater by virtue of the small size of the 
group. The variance in results still amounts to an imbalance 
to the detriment of the defense solely as a result of the 
group’s small size. Five members do not adequately represent, 
minority viewpoints; in close cases, five members do not pro­
vide the requisite sense of the community necessary to pro­
duce reliable results. Moreover, small groups of five members 
in the military are more easily subjected to the subtle 
pressures of unlawful command influence.

In addition to the safeguards found in the members’ ability 
to ask questions and take notes, soldiers are entitled to the 
due process protection inherent in the requirements that 
courts-martial be composed of at least six members and that 
all six-member findings be unanimous.6 A requirement of 
unanimity has the value of producing more accurate findings, 
as both Congress and the President have clearly acknowl­
edged by their requirements of unanimity in capital cases.

Petitioner specifically seeks this requirement of unanimity 
of six members in at least all cases where confinement for life 
is mandatory upon a finding of guilty. No accused should be 
deprived of his liberty for life based upon findings which may 
be erroneous or generated by known infirmities. The pro­
cedural safeguards of assembling more than five members 
and requiring unanimity on findings are therefore absolutely 
essential.

Government interests are not adversely affected if these 
safeguards are provided. First, the appointment of a suffi­
cient number of members in premeditated and felony murder 
cases to ensure the assembly of more than five members

6 The assembling of seven or more members, even without a requirement 
for unanimity in findings, would also satisfy constitutional concerns.



14

burdens the government little in terms of time or money. The 
assembly of six or more members is a common occurrence in 
courts-martial practice. General court-martial convening 
authorities have sufficient members within their jurisdiction 
from which to appoint court-martial members. Second, the 
government shares the same compelling interest of all 
military accused in producing accurate findings. Ake v. 
Oklahoma, 470 U.S. at 79. The government has no legitimate 
interest in the mandatory imposition of a sentence to life con­
finement against an accused who has been found guilty and 
sentenced to life imprisonment by an inherently suspect 
court-martial panel.



f )

CONCLUSION

The military’s mission of defending this country is without 
a doubt a most compelling state interest. Petitioner’s interest 
in receiving a fair trial resulting in accurate findings of fact is 
equally compelling. There has been no showing that com­
pliance with the basic due process rights expressed in Burch 
will in anyway harm the national defense. The perception of 
fairness and accurate verdicts can only enhance the morale 
and effectiveness of men and women in our Armed Forces. 
Thus, the two interests are neither inconsistent nor mutually 
exclusive and can coexist to promote an effective fighting 
force while maintaining the constitutional rights of its 
soldiers. Anything less than a minimum requirement for 
unanimous six-member verdicts clearly thwarts constitu­
tional due process and fundamental fairness. In the absence 
of a clear and compelling national interest requiring other­
wise, soldiers are entitled to the same accuracy from fact­
finders in criminal trials as are all other citizens of the United 
States.

Respectfully Submitted,
J ohn T. E dwards 

Colonel, JACK'
Chief A ppellale Defense Counsel 

Defense A p pel lute Division 
U.S. Arm y Legal Services Agency 
Nassif Building 
Falls Church, Virginia 22051 
(7OK) 756-058.1 
Counsel of Record

J o el  I). Mil l e r
Lieutenant Colonel, JAGC
Appellate Defense Counsel

Marion E. W in ter  
Major, JAGC 
Appellate Defense Counsel

W illiam  J. Kilo allin  
Captain, JAGC
Appellate Defense (Counsel



APPENDICES



APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 59438/AR 
CMR Dkt. No. 8700268

United States, appellee

v.
Nathaniel Johnson, J r. (214-72-8044), appellant

ORDER

On consideration of the petition for grant of review of the 
decision of the United States Army Court of Military Review, 
we concluded that appellant’s court-martial was convened 
and conducted in accordance with the Uniform Code of 
Military Justice. Accordingly, it is by the Court, this 4th day 
of April, 1988 

ORDERED:
That said petition for review is granted on the issue raised 

by appellate defense counsel; and 
That the decision of the United States Army Court of 

Military Review is affirmed.
For the Court,

Isl J ohn A. Ch its , III
Deputy Clerk of the Court

cc: The Judge Advocate General of the Army 
Appellate Defense Counsel (KILGALLIN)
Appellate Government Counsel (HAUSKEN)

(la)



2a

APPENDIX B

UNITED STATES ARMY COURT OF 
MILITARY REVIEW

ACMR 8700268 
United States, appellee

V.

P rvate E-2 Nathaniel J ohnson, J r. (214-72-8044), 
United States Army, appellant

United States Army 
Transportation Center and Fort Eustis 

J. R. HOWELL, Military Judge

For Appellant: Lieutenant Colonel Joel D. Miller, JAGC, 
Major Marion E. Winter, JAGC, Captain William J. Kilgallin, 
JAGC (on brief).
For Appellee: Colonel Norman G. Cooper, JAGC, Lieutenant 
Colonel Gary F. Roberson, JAGC, Captain Gary L. Hausken, 
JAGC (on brief).

30 November 1987

DECISION

Before
DeFORD, Kane, and Smith 

Appellate Military Judges

Per Curiam:
On consideration of the entire record, including considera­

tion of the issue personally specified by appellant, we hold the



findings of guilty and the sentence as approved by the con­
vening authority correct in law and fact. Accordingly, those 
findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

I si William S. F ulton, J r. 
WILLIAM S. FULTON, JR. 
Clerk of Court

U.S. GOVERNMENT PRINTING OFFICE: 1988-214-291/62026





R E P L Y  T O  

A T T E N T I O N  O F

U N I T E D  S T A T E S  A R M Y  L E G A L  S E R V I C E S  A G E N C Y  
N A S S I F  B U I L D I N G

F A L L S  C H U R C H .  V I R G I N I A  2 2 0 4 1  5 0 1 3

D E P A R T M E N T  O F  T H E  A R M Y

June 6, 1988

,p

Defense Appellate 
Division

NAACP Legal Defense Fund 
ATTN: Mr. Steve Ralston 
99 Hudson St.
New York, New York, 10013
Dear Mr. Ralston:

I am one of the appellate attorneys assigned to represent 
Private Nathaniel Johnson. I believe this is an appropriate 
case for an amicus curiae pleading from the NAACP Legal 
Defense Fund. As the“enclosed pleading sets out, Johnson was 
tried and convicted of murder by a five-member military jury. 
We believe that in light of the Supreme Court decision in
Solorio v. United States. __ JJ.S.___  107 S.Ct. 2924, 97 L.Ed
2d 364 (1987), the issue of minimum military due process must 
now be addressed by the Court.

If you are interested in pursuing this case as an amicus 
curiae. I will be pleased to offer any assistance I can.
Thank you for your consideration of this matter.

Sincerely

t .a p ta ± ii ,
Appellate Defense Counsel 
(202) 756-0572

WJK:mj j