New York Times


WASHINGTON, Sept. 3 - A fundamental principle of death penalty law in the United States is that no person may be convicted of a capital crime except by the unanimous verdict of a 12-member jury. That is the law in all of the 38 states that have the death penalty, as well as in federal cases.

There is, however, one exception. A jury of five is all that is required to sentence a member of the armed services to death in a court-martial. Now, with the death penalty under closer scrutiny in many jurisdictions, organizations and individuals who believe that service personnel deserve the same protections as civilians have quietly started an effort to change the military system. Shortly before Congress adjourned for the summer, a House committee inserted a provision in the military authorization bill that would require at least 12 people on a military jury in a case where the death sentence was a possibility, unless military necessities made that unfeasible.

The legislation is similar to a recommendation that the National Institute of Military Justice, a nonprofit organization here, submitted to Congress and the Pentagon in June. In May, on the 50th anniversary of the Uniform Code of Military Justice, the institute established a five-member commission, including three retired military officers, to review the courts-martial system.

The commission, which was headed by Walter T. Cox III, who was on the South Carolina Supreme Court and the United States Court of Military Appeals, also recommended that in capital cases, judges give a so-called antidiscrimination instruction to the jury. The instruction, which is required in federal death penalty cases, would tell the jurors they may not consider the race of the defendant or of the victim in deciding whether to impose the death penalty.

Six servicemen are on military death row, at Fort Leavenworth, Kan. Four of them are black, one is Asian and one is white. Each was convicted of killing one or more white people. All military death sentences must receive presidential approval before they can be carried out. Two of the cases are expected to reach President Bush’s desk in the next year. President Dwight D. Eisenhower was the last president to approve a serviceman’s execution. While military law requires only five members on a jury, there may be more. All are officers, unless the defendant is an enlisted man and requests enlisted men on the jury, in which case up to one-third may be enlisted.

In capital cases, unanimity is required for the jury to impose the death penalty, so increasing the number of jury members raises the standard for conviction.

The Pentagon declined to comment on the merits of the legislation to require a 12-member jury in capital cases. “The department is giving the proposal serious review and consideration according to established procedures,” said Lt. Col. Catherine Abbott, a spokeswoman, “and it is premature to comment until that comprehensive review is completed.”

A senior Pentagon official, speaking on the condition that he not be identified, said the Defense Department’s committee on military justice, which has representatives from all of the services, had begun the review and was expected to complete it in May 2002.

An active proponent of changes in the military justice system in capital cases, Dwight Sullivan, who was a Marine Corps lawyer from 1987 to 1997, said further study was not needed or warranted. “This issue has been considered, this issue has been debated, it’s been studied, for a decade,” said Mr. Sullivan, who is now head of the Baltimore office of the American Civil Liberties Union. In 1991, Mr. Sullivan noted, a judge on the Court of Military Appeals said hebelieved that in peacetime, there should be 12 members on a jury in death penalty cases. “The value of a soldier’s life is surely equal to the value of the life of his fellow citizens,” Chief Judge Eugene R. Sullivan wrote in a concurring opinion. But, Judge Sullivan said, neither the Constitution nor Congress required it. (Judge Sullivan, who is still on the court, is not related to Dwight Sullivan.)

No defendants in pending courts- martial are facing a possible death penalty, Dwight Sullivan said, but that is no reason to delay passage of the legislation. “We need to have the rules in place, so that if a case begins tomorrow, at Fort Bragg, or Camp Pendleton, there are fair procedures in place to try that case,” he said. “The sooner we get it enacted, the sooner we have a fair death penalty system.” Mr. Sullivan added that if the Pentagon said it would not seek the death sentence in any case until the issue was resolved, “then we’d say, Go ahead and study it.”

In the case of one military death row inmate, Kenneth Parker, a marine charged with killing two other marines, his lawyer asked for a 12- member jury and the base commanding general agreed. But the military judge in the case denied the request, and the marine was sentenced by an eight-member panel.

Mr. Sullivan said that the Navy and Marine Corps had tried about 40 capital cases since 1984 and that the juries had returned a death verdict in 7. Four of these sentences were commuted or overturned on appeal, he said. The army has tried 29 capital cases since 1984, a Pentagon official said, 9 resulted in death sentences, with 6 of those reversed on appeal.

Representative Ike Skelton, Democrat of Missouri, who inserted the provision that would require a 12- member jury, said, “This change will only enhance the perception that the military justice system is as fair as any in the country.” Noting that in all civilian criminal trials, a 12-member jury is required to impose death, Mr. Skelton added, “Our servicemen and women deserve no lesser standard.”