The Military Jury

“The majority of your grade,” my military law syllabus reads, “is based on your research paper, which must be at least 7,000 and no more than 10,000 words (approximately 20 to 30 pages in length).”

Long papers generally replace exams for HLS seminar courses, but this is definitely on the ‘longer’ side. Since I’m spending sooooo much time writing this bad boy, in true LBAF fashion, you now have to hear about it 🥰🥰🥰

I chose a topic that has always intrigued me, in both the civilian and military worlds: jury in a criminal trial. This post runs through the ‘big points’ of my paper, distilling lots of research and interpretation with a lil RV paraphrasing of caselaw. Trust me, no one wants the 30-page version.

This post is also way longer than expected so I’ve split it into two parts. Part I (this article) describes why the constitutional jury protections have never applied to military courts and why I think that logic is deeply flawed. Part II (next week) examines the modern state of affairs (spoiler alert: Congress does give us some rights to a jury via statute!), its problems, and some ideas re: improvement moving forward.

THE JURY RIGHT

In the civilian world, the right to a jury during a criminal trial – aka, having a group of people from the affected community hear relevant evidence and fairly determine the guilt or innocence of the person accused of a crime – is based in the American Constitution.

Article III states unequivocally: “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury…” while the Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed” [emphasis added].

Despite this sweeping language, the Supreme Court has decided these clauses don’t apply to literally all crimes. For example, trial of ‘petty offenses’ doesn’t require a jury. Only ‘serious offenses,’ or those carrying a possible sentence of 6+ months imprisonment, trigger the jury right (Baldwin v. New York, 399 U.S. 66 (1970)). The Sixth Amendment also didn’t apply to the states until 1968, when the Supreme Court “incorporated” the entire thing through the 14th Amendment (Duncan v. Louisiana, 391 U.S. 145 (1968)). In 2022, the Sixth Amendment right to a jury trial DOES apply in every American state and federal jurisdiction.

…but not in the American military. In a nutshell, here’s why.

HISTORY

In 1775, the Continental Congress enacted the first American Articles of War for the emerging US military. The Articles basically said military members could be tried for certain service-specific crimes, like mutiny and desertion, in commander-led procedures called ‘courts-martial.’ These procedure were very much a “discipline” thing, not a “justice” thing – for a truly horrific story of how they often played out read the story of poor Thomas Hickey.

The US Constitution was ratified in 1788, designating the President as Commander-in-Chief of the Army and Navy (Art II, Sec. 2) and allowing Congress to declare war, raise armies, provide a navy, and “make rules for the government and regulation of the land and naval forces” (Art I, Sec. 8). The “making rules” part gave Congress control over courts-martial procedure and substance, but the relationship between military courts and the Constitution was very unclear. Were courts-martial really “courts,” in which case constitutional protections probably applied? Or were they more on the “martial” side as instruments of discipline, in which case those protections probably did not?

CASE LAW

That question wasn’t answered until 1857. In a case called Dynes v. Hoover, the Supreme Court ruled that civil courts and military courts are completely separate. Dynes didn’t technically say ‘you military members don’t have a right to a jury’ though – that came in a later case called Ex Parte Milligan. In Milligan, a military tribunal tried and convicted a civilian; the Court immediately struck that down because military courts don’t have jurisdiction over civilians, ever (a principle that still holds today). But in doing so, the Milligan Court stated that the Sixth Amendment right to a jury didn’t apply to courts-martial based on, oddly enough, the Fifth Amendment!

The Fifth Amendment reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Court pointed to the Fifth Amendment’s “except in cases arising in the armed forces” language and said “well, the jury right can only logically kick in after a grand jury was convened. The military exception clearly applies to the 6th Amendment jury right too.”

Mmmmmm….how that was clear, I’ll never know.

That position was 100% cemented in a 1921 case called Kahn v. Anderson, when the Supreme Court said “you military folks DEFINITELY don’t get a jury under Article III or the Sixth Amendment. There, we said it. Now stop asking.” And that was that.  

PROBLEMS W/THIS UNDERSTANDING

A large part of my paper pushes back on the conclusions above because I’m straight up not convinced! These are the biggest three reasons I think we *may* be wrong to deny the constitutional jury right in a court-martial setting. To be clear, I didn’t come up with these objections, - people far smarter than me did that. I just read their articles.

First, the Constitution says nothing about excluding military members from the protections of a jury. Nothing!  The way the Court interpreted the Fifth Amendment to somehow affect the Sixth Amendment, without a very clear reason, violates every interpretative rule in the book.  Very strange.

Second, no legislative history (aka, how the constitutional text reached its final formation) explaining why the Founders included a military exception in the Fifth Amendment but not the Sixth.  Therefore, there’s nothing to suggest that they DIDN’T do it on purpose. Additionally, some people think the decision to not write the exception into the Sixth Amendment was based on (2) an oversight because the Founders were tired or (2) because it just sounded better in the Fifth Amendment. Huh.

Third, let’s say the Founders decisively wanted the jury right to NOT apply to courts-martial. That decision was made in a time where there were waaaaay fewer military personnel (think, 672 at the time of Washington’s inauguration) and servicemembers could ONLY be tried at court-martial for military crimes like desertion, mutiny, and sedition. All other crimes were left to civilian courts.

Today, the military is made up of 1.3 million active duty personnel (and swelled to many times that size during the world wars) and servicemembers can be tried for (practically) any crime under the sun. Seems iffy that the Founders would be okay denying the jury right to so many people accused of so many crimes, when that wasn’t the understanding at the time of ratification.

To be continued…