Update 21032022: The ACCA has scheduled oral argument en banc in Dial. for April 14, 2022, on the following issue.
WHETHER THE MILITARY JUDGE ERRED WHEN GRANTING DEFENSE’S MOTION FOR APPROPRIATE RELIEF REQUIRING THE PANEL TO HAVE A UNANIMOUS VERDICT FOR ANY FINDING OF GUILTY AND TO MODIFY THE INSTRUCTIONS
On March 17, 2022, the Air Force Court of Criminal Appeals decided United States v. Westcott, No. ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (memorandum op.), at least one judge of the court would hold that the Appellant was denied the right to a unanimous “jury” finding of guilt. Slip op. at *108.
A general court-martial panel (jury) need only have a six out of eight votes for guilt. Should that change because a nonunanimous "jury" is unconstitutional in all state and federal courts since Ramos v. Louisiana?
Prof. Vladeck had raised the issue in a supplement to a petition for review in United States v. Scott, an AF case. Document here. The petition was denied March 3, 2022.
On February 24, 2022, the ACCA specified this issue in the Dial case,
Brief--Government Petition for Writ of Prohibition in Dial.
Brief--Government Supplement to the Writ-Petition
Here is the brief in opposition to the Writ petition.
Here are links to the POD amicus filings. Query: does United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) have any relevance?
United States v. Ferreira. ARMY MISC 20220034 (A. Cr. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the "Dial" issue. The government also petitioned for a Writ of Prohibition. Likely the petition is similar to that filed in Dial.
A petition has been filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022)..
A reader has suggested reviewing R. v. Thwaite,  WLR 1125,  EWCA Crim 2973,  1 WLR 1125,  1 Cr App Rep 19,  1 Cr App R 19.
MAJ Hugh E. Henson, The Hung Jury: A Court-Martial Dilemma. 35 MIL. L. REV. 59 (1967).
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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