Ruling requiring unanimous verdict at military sexual assault trial unlikely to survive appeal, analysts say
An Army judge’s novel ruling to require a unanimous guilty verdict in an upcoming court-martial has drawn an array of characterizations by military law experts: totally wrong, partially right, rogue and brave among them.
But all the analysts interviewed for this story agreed on one thing. They said the ruling will most likely be overturned by an appellate court.
Col. Charles Pritchard, a judge in Kaiserslautern, Germany, issued the 16-page ruling this month in response to a motion by the defense for Lt. Col. Andrew Dial, who is charged with three counts of sexual assault.
“This judge obviously put a great deal of effort into it and used his noggin,” said Eugene Fidell, a military law professor at New York University. “It takes some courage for a judge to do this, so my hat’s off to him.”
Pritchard held that allowing a split guilty verdict would violate Dial’s constitutional rights under the Fifth Amendment guarantees of due process and equal protection under the law.
In essence, he said the military must accord Dial the same right to a unanimous criminal jury guilty verdict as civilian defendants have been afforded in federal, and, since 2020, state courts.
The ruling was a surprise because split jury verdicts have been part of the military justice system for at least a half century.
What’s more, the U.S. Supreme Court has deferred to Congress to decide military law and regulations, including those involving jury rights, even when they deviate from civilian law. Yet many legal experts say it’s time that changed.
“The right to a unanimous criminal jury really is baked deeply into American legal culture,” Fidell said.
Pritchard’s decision followed the U.S. Supreme Court’s 2020 ruling that in keeping with Sixth Amendment guarantees for criminal defendants, juries in state courts must reach unanimous guilty verdicts, which the federal courts had long required.
The high court’s 6-3 decision in Ramos v. Louisiana held that non-unanimous verdicts reflected a racist past and that a split verdict is “no verdict at all.”
The decision left the military as the sole jurisdiction allowing split guilty verdicts, a situation ripe for defense lawyers to litigate. Pritchard agreed with Dial’s attorneys, finding that there is “no rational basis” for permitting court-martial convictions that aren’t unanimous.
It’s likely that more defendants will file similar motions, Fidell said.
“If I were a criminal defense counsel, I would raise it if I had a pending case,” he said.
Prosecutors are appealing Pritchard’s ruling, and the Army Court of Criminal Appeals set Jan. 25 as the deadline for the government’s petition. Meanwhile, the court-martial for Dial, a member of Allied Forces North Battalion, based in Belgium, has been delayed.
For how long is uncertain, in part because the Army appellate court’s decision could in turn be appealed to the military’s highest court, the Court of Criminal Appeals for the Armed Forces.
Rachel VanLandingham, a law professor at Southwestern Law School in Los Angeles, said Pritchard was half-right.
“While I disagree with the military judge’s rationale, I think the result is 100% correct, that the unanimous verdict requirement is constitutionally required, even in courts-martial,” she said.
Nevertheless, she doesn’t think the ruling will survive an appeal.
Other observers are of the opinion that Pritchard overstepped his authority.
“The judge clearly has gone rogue,” said Victor Hansen, a law professor at New England Law Boston and former Army lawyer. “I’d expect a quick reversal by the military appeals court.”
Don Christensen, a former Air Force prosecutor and judge, said Pritchard’s ruling was “clearly wrong.”
Christensen, who is also president of Protect Our Defenders, an advocacy group for survivors of military sexual violence, said Pritchard’s decision ignored previous Supreme Court rulings.
It also ignores the fact that the justices did not include the military in the Ramos v. Louisiana decision and that Congress has also chosen not to require unanimous military verdicts, Christensen said.
Although he supports unanimous military juries, he said allowing Pritchard’s ruling to stand would create chaos.
“If you get Judge Pritchard, you get one form of justice. If you get one of the other judges, you’ll get a different system of justice,” Christensen said.
The issue of split verdicts could have a large impact on sexual assault cases. Many military defendants choose to be tried by a judge rather than jury, Fidell said.
But sexual assault defendants often choose a jury trial because “the defense bar has decided (military jury) members have a greater propensity for acquittal.” Defense Department statistics bear that out.
Pritchard’s ruling said there was no constitutional requirement for unanimous verdicts to acquit and made no provision for a hung jury.
In civilian trials when jurors can't reach a unanimous verdict, the result is no verdict and often a retrial. Instead, Pritchard's ruling said that even if only one juror voted to acquit and all the others voted to convict, the verdict would be not guilty.
“Sustaining this judge’s ruling in an untidy condition, it would throw the ball over to Congress,” Fidell said. “It’s a matter that’s been placed on their doorstep. I think it deserves their urgent attention.”
Even so, there’s no guarantee that Congress would be interested in changing the rules, possibly because of an impact on sexual assault cases or for political reasons.
Fidell recalled that in the U.K. some years ago a trial judge ruled that unanimous verdicts were required, but the Court-Martial Appeal Court said he was wrong to do so.
“They said, ‘Fiddlesticks. That’s not the law, and stop doing that,’” he said.