Anderson, cert. denied--today

2/20/2024

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-437.html

Donald G Rehkopf, Jr.

2/22/2024 11:10:42

The denial of certiorari in Anderson on the unanimity of courts-martial verdicts, does not end the constitutional issue, nor does it mean that the issue is moot. As SCOTUS itself has repeatedly said for years, “The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.” U.S. v. Carver, 260 U.S. 482, 490 (1923).

While CAAF’s decision in Anderson remains the controlling precedent within the military justice regime, CAAF is not the final arbiter of constitutional questions. Since the question remains open, while courts-martial are bound by Anderson, defense counsel can, may, and should (for preservation purposes) continue to press the issue of unanimity–doing so is ethically permissible under the applicable Rules of Professional Conduct, R. 3.1, which states in relevant part:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

There are a number of speculative reasons for the denial, but they are just that–speculation. However, as the Government pointed out, Congress is considering a statutory change to the UCMJ, mandating (at least in “serious” cases) unanimous verdicts. That has happened before. In 2000, Private Ronald Gray’s capital case was pending before SCOTUS. Gray was convicted of capital murder and sentenced to death by a GCM, but convicted and sentenced over defense objection by a six person Panel. Congress amended the UCMJ to mandate 12 person panels by adding Article 25a(a), and certiorari was denied. Additionally, there were some procedural issues in Anderson that generally the Court wants to “percolate” in an Article III, court where a better-focused record can be had.

Philip D. Cave link

2/22/2024 12:32:29

Don, CAAF follows the same principle as in Carver. And, don't forget "Fosler" (upset 60 years of precedent) and temporarily "Mangahas" (upset some years of precedent). I think this is the CAAF case, United States v. McGriff, 78 M.J. 487, 487 (C.A.A.F. 2019). In Weiss, Code 45 had filed several petitions, all denied, Perhaps SCOTUS got tired of the regular petitions, who knows.

Donald G Rehkopf, Jr.

2/22/2024 16:18:10

Or until some Article III court grants habeas relief and the SG seeks cert to settle the issue, or Congress mandates it (fat chance IMHO).

Michael Stanski

2/23/2024 10:52:53

FYSA, Section 536 of NDAA FY24 requires DOD to study and report on this issue by 2025.

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Anderson, cert. denied--today

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