Sexual assault trial postponed over Army judge’s unanimous verdict order
Stars and Stripes January 6, 2022
STUTTGART, Germany — The court-martial of an Army officer facing sexual assault charges is being delayed to give prosecutors time to appeal a military judge’s order that a unanimous verdict will be required to win a conviction.
Col. Charles Pritchard, a judge in Kaiserslautern, Germany, issued an extraordinary ruling Monday that said allowing a split guilty verdict in the trial of Lt. Col. Andrew Dial would violate the officer’s constitutional rights by denying him equal protection.
On Wednesday, Army prosecutors were granted a delay in the case by the Army Court of Criminal Appeals. Dial’s trial had been slated to begin Jan. 10.
Capt. Karey Marren, an attorney for the Army, said in a court filing Wednesday that the government intends to submit a petition for “extraordinary relief” because of Pritchard’s ruling. Prosecutors were given until Jan. 23 to file the petition with the court.
In essence, the petition seeks a reversal of Pritchard’s ruling, which came in response to a motion by attorneys for Dial, a member of the Belgium-based Allied Forces North Battalion.
Dial is charged with three counts of sexual assault. Details about the allegations were not included in the ruling or in an Army court docket.
Under the Uniform Code of Military Justice, split jury verdicts have long been permitted, although the guidelines have been tweaked over the years.
Since 2019, a three-fourths concurrence of court-martial panelists is required to convict and sentence a defendant in a trial with service members. A death sentence requires unanimous conviction by a jury.
Pritchard, however, said that under the Fifth Amendment, there is “no rational basis” for Congress to treat service members differently than civilians when it comes to the requirement of unanimity of a jury for conviction.
Pritchard also said in his ruling that Congress has consistently narrowed the gap between the military and civilian legal systems, bringing the former more into line with the latter.
By allowing split verdicts in courts-martial, Congress has encroached on Fifth Amendment due process rights, he wrote.
Don Christensen, a former Air Force prosecutor and judge, said Pritchard’s ruling would unleash “chaos if the appellate courts don’t review this.”
“I believe we should have unanimous verdicts, whether for guilty or not guilty,” he said. “But the appropriate way to do it is through Congress.”
Robert F. Capovilla, a military defense attorney, concurred that the time has come for unanimous verdicts in the military justice system.
“Every other branch of American criminal jurisprudence requires unanimous verdicts. Why is the military different?” he said. “As the Army highlights more and more sexual assault prosecutions, it’s imperative that unanimous verdicts be required.”
Still, while Congress has reformed the Uniform Code of Military Justice over the years, there has been no legislative groundswell to do away with split military verdicts, which are outlawed in civilian criminal courts at the federal and state levels.
In his ruling, Pritchard described the practice in the military as a relic of the original Articles of War, which were adopted from the British.
The use of split verdicts in courts-martial “simply slipped into congressional legislation pertaining to military justice,” he wrote.
Stars and Stripes reporter Nancy Montgomery contributed to this story.