The U.S. military’s highest appeals court ruled Thursday that troops do not have the right to a unanimous verdict in criminal trials, upholding a disparity between military and civilian courts that dates back to the country’s founding.
The 5-0 ruling by the U.S. Court of Appeals for the Armed Forces means American service members remain the country’s only constituency not afforded the same constitutional rights as defendants in civilian courts.
“The lack of such a right has been a central component of a series of landmark Supreme Court military justice cases,” the judges wrote in the 19-page opinion. “It would be disingenuous for this court to ignore over a century of consistent guidance from the Supreme Court about the applicability of the Sixth Amendment to military trials.”
The decision affirms an earlier ruling by the Air Force Court of Criminal Appeals in U.S. v. Anderson, a 2020 case in which Master Sgt. Anthony Anderson was found guilty of two counts of attempting to sexually abuse a child.
Starting in 2018, Anderson had sent lewd messages and photos to “Sara,” a fake 13-year-old created by the Air Force Office of Special Investigations on the anonymous messaging app Whisper. He also tried to discuss sex with a real 15-year-old female student at Ramstein Air Base in Germany, for which he was not charged.
Anderson’s defense counsel had asked the court to either require a unanimous vote for conviction, or to announce whether the vote was unanimous if the jurors found him guilty. The judge denied that request.
Anderson was convicted by a panel of officers and enlisted airmen. At least three-quarters of a court-martial jury must agree whether a defendant is guilty or not, per the Uniform Code of Military Justice.
He chose to be sentenced by the military judge and received 12 months of confinement; reduction to airman basic, the Air Force’s lowest enlisted rank; and a dishonorable discharge.
The Air Force appellate court later agreed with the judge’s decision not to require a unanimous conviction; Anderson’s team argued it violated his rights to due process and a jury trial afforded by amendments to the U.S. Constitution.
Bill Cassara, a civilian lawyer representing Anderson at his court-martial, did not comment on the case by press time Friday.
Don Christensen, a retired Air Force colonel who served as the service’s chief prosecutor, said the verdict calls the military justice system’s fairness into question.
“Unanimous verdict is the gold standard of justice,” he said. “The military is kind of stuck in 1775 in the way they view this.”
Thursday’s ruling formally answers a question that has loomed over courts-martial since the country’s founding. Because of how the laws governing the U.S. military’s rules and responsibilities were written, the U.S. Supreme Court and uniformed judges view the Sixth Amendment right to a jury trial as a feature of civilian courts, not the military justice system.
The U.S. Supreme Court first ruled in 1972 that convicting a defendant in a split decision violated the Sixth Amendment. The court banned non-unanimous verdicts in state criminal cases in 2020, leaving the military as the only jurisdiction that allows them.
Anderson’s team argued that because the Supreme Court hasn’t yet heard a direct plea on the matter, the military appellate court could step in to create a new precedent. But the judges didn’t buy it.
They pointed as far back as the 1775 Articles of War, which called for convictions by majority vote, and the subsequent U.S. Supreme Court cases that have nodded to that standard in rulings on civilian matters. A jury doesn’t need to issue a unanimous verdict to be impartial, they added.
Government lawyers have argued that split verdicts can be more efficient and avoid pressuring lower-ranking jurors to defer to their superiors to reach a consensus.
Christensen blasted those as outdated excuses, saying the military can afford to hold retrials in case of hung juries and should trust its members to do the right thing. He now works at Solomon Law Firm, which specializes in federal employment cases.
“We expect the lowest enlisted member in the military to be able to tell a four-star general that ‘I will not obey an unlawful order,’ ” he said. “I don’t think it’s too much to ask … that junior members would be able to push back against senior members if they didn’t think someone should be found guilty.”
Anderson’s team could still appeal to the Supreme Court as a last resort. But the panel rarely agrees to hear military justice matters, Christensen said. He believes the justices would side with the government in Anderson’s case.
Without resolution through the judiciary, it falls to Congress to mandate unanimous courts-martial verdicts. Failure to do so will continue to erode confidence in the military justice system, Christensen said.
“This is one of the last remaining issues … that both the defense and prosecution, when they’re being honest, realize … needs to be changed,” he said.
Rachel Cohen is the editor of Air Force Times. She joined the publication as its senior reporter in March 2021. Her work has appeared in the Washington Post, the Frederick News-Post (Md.), Air and Space Forces Magazine, Inside Defense, Inside Health Policy and elsewhere.