United States v. Thomas

¶1(concurring in part):

¶2I concur with the lead opinion insofar as Judge Lawrence concludes (1) that the military-judge’s initial instruction on reconsideration and his answer to the president’s question were not erroneous; and (2) that the affidavits submitted by defense counsel merit only a limited inquiry and that only to determine whether the exceptions, contained in R.C.M. 923 and Mil.R.Evid. 606, for inquiry into the members’ deliberations existed. Like Judge Lawrence, I conclude that none of the exceptions in R.C.M. 923 or Mil. R.Evid. 606(b) is shown. Therefore, I concur with Judge Lawrence that the Court may not consider the affidavits or depositions as a means to impeach the findings or the sentence in this case. See United States v. Motsinger, 34 M.J. 255 (C.M.A.1992). Having reached this conclusion, I believe no further inquiry is necessary.

¶3Although not required in the resolution of the issue before the Court, Judge Lawrence’s remarks in Part VII of his lead opinion are well-reasoned and I endorse them.

¶4(dissenting):

¶5At the outset, it is important to recognize what this case is not. It is not, as most of the case law suggests, the result of a juror second-guessing himself after trial as to his role in returning a verdict of guilt. In such cases, whether the seed of doubt has arisen naturally or been sown by trial defense counsel, that juror may often come forward to provide an affidavit as to any misgivings he might harbor. This case however, is one that has traveled a tortuous path in its post-trial life, spurred on by concerns over latent command influence, and shepherded along the way under this Court’s supervision. The result is not the single affidavit of a disgruntled juror, but the sworn testimony of three military court members whose credibility is without question, and who provide substantial evidence that multiple voting on the findings of premeditated murder took place.

¶6*642As I will discuss, relief from the death penalty is required under any of three grounds: (1) the military judge erred in refusing to entertain appellant’s military due process right to a poll of the members on whether their binding vote on the finding of guilty was initially unanimous; (2) under the facts of this case, the military due process right of a serviceperson not to be sentenced to death except by a reliable death-determining process overrides the interest of Mil. R.Evid. 606 in preserving any secrecy in the number of votes taken by the members; and (3) based on the sworn depositions provided, there can be no certainty that the ultimately unanimous vote of the members constituted their initial and thus “true” vote, so as to have permitted the case to continue in its potential for capital punishment.

¶7I.

¶8After the discussion between the court president and the military judge on the possibilities for reconsideration of the finding of guilty, as noted by the lead opinion, the members deliberated, seeking no further guidance from the military judge before announcing their unanimous finding of guilty of the charge and specification. Thereafter, defense counsel requested the military judge to query the members as to the number of times they voted before announcing their verdict. The military judge denied the request, finding no basis for the inquiry for the reason that the members had not requested further instructions on reconsideration after beginning deliberations. The military judge did agree “after announcement of sentence, [to] ascertain that is the agreement of all the court members.” Subsequently, he polled the members to determine that each had, in fact, reached the decision as to their finding of guilty, the necessary aggravating factors, and the death sentence. At no time did he inquire whether more than one vote had been taken on the finding of guilty.

¶9The judge omitted in his truncated, but commonplace, response to such a general question dealing with reconsideration, any explanation to the members that although they could reconsider their nonunanimous finding of guilty, that if they were to do so, a capital sentence was no longer authorized.1 Rule for Courts-Martial 922(b)(2) and accompanying Discussion; but cf. United States v. Perez-Pagan, 47 C.M.R. 719, 1973 WL 14822 (A.C.M.R.1973).2 Thus, there is no indication of record that the members were on notice of the virtual life-and-death significance of their initial vote on findings. Because I do not find that the judge’s omission necessarily resulted in plain error, I would entertain the question of prejudice and the means by which it has been asserted in the assigned error before us.

¶10II.

¶11As a result of his review of the record of trial, appellant’s civilian appellate defense *643counsel contacted Staff Sergeant (SSgt) J, who as the junior member, would have been responsible for collecting and tallying the secret written ballots utilized during the guilt-determining phase of trial. After cautioning SSgt J not to divulge his particular votes or remarks or those of any other member, counsel asked if SSgt J recalled the number of ballots taken in the determination of guilt. SSgt J replied that many votes had been taken during both the guilt and sentencing phases of the trial, but that he could not recall the exact numbers. Subsequently, appellant’s military appellate defense counsel telephoned SSgt J. After again being advised not to disclose the vote of any particular member, SSgt J reiterated that the members had voted several times at each phase of the trial.3

¶12Appellant, suggesting that unlawful command influence may have been brought to bear on the members who initially voted for acquittal, requested, and the Court ordered that the members be deposed.4,5

¶13*644The depositions of Lieutenant Colonel K, Lieutenant Commander R, Master Gunnery Sergeant S, and Gunnery Sergeant J, each provided that there had been a single vote taken on first the Specification and then the Charge of premeditated murder. On each of those two votes, their depositions state that the vote was unanimous. Staff Sergeant J, who according to the defense affidavits provided the first indications of multiple voting, upon being deposed, stated that there had been but a single vote on the Specification and the Charge, and that each had been unanimous. Staff Sergeant J related that he had not answered an unidentified defense counsel’s questions as to the number of votes taken, and that he thereafter had come to see the prosecutor who told him that he wasn’t “supposed to talk about it.”

¶14On the other hand, the deposition of Captain H recalls voting more than once, but no more than three times on the Specification to avoid reaching an impasse as a “hung jury.” As best he could remember, on the first or second vote “there was one, maybe two that were not in favor of a guilty finding;” however, the “last vote was unanimous.” Lieutenant Colonel R could not remember clearly the votes taken, but believed they “voted twice with a break in between there where [they] talked to the Judge;” however, he definitely recalled reaching a unanimous decisión. Finally Major C stated that the members had voted more than once on the Specification because “the panel — they had some questions — things that weren’t answered hadn’t been discussed, so [they] had to continue further deliberations to determine if everything [had] been covered.” He recalled two or three votes on the Specification, but that the final vote had been unanimous. Major C also recalled one or two votes on the Charge, going through the same process of voting, discussion, and voting, as they had on the Specification. His deposition reveals the reasoning for this process:

We went through it basically the same as the — the other vote. Any questions they had — the panel was taking this very seriously, and — and we really wanted to make sure, and the individuals wanted to make sure that everything was answered and that all the questions were answered, and everything was done before we finally come (sic) up with a verdict, and that’s the reason that — . We felt we had come up to a time that we could possibly vote for a verdict, and yet there was still some questions. Of course, nobody was going to say that until after the. vote. They were — they had questions, but they were still in their heads, and they decided that they were gonna [sic] continue on with more delibera*645tions.6

¶15III.

¶16Rule for Courts-Martial (R.C.M.) 922(b)(2) states the procedure for announcing findings in a capital case: “In a capital case, if a finding of guilty is unanimous with respect to a capital offense, the president shall so state [after he has checked the vote count made by the junior member upon collection of the secret written ballots].” The discussion accompanying R.C.M. 922 explains:

If the findings announced are ambiguous, the military judge should seek clarification. See also R.C.M. 924. A nonunanimous finding of guilty as to a capital offense may be reconsidered, but not for the purpose of rendering a unanimous verdict in order to authorize a capital sentencing proceeding.'' The president shall not make a statement regarding unanimity with respect to reconsideration of findings as to an offense in which the prior findings were not unanimous.

¶17Discussion, R.C.M. 922(b)(2), Manual for Courts-Martial, United States, 1984 (MCM), Part II at 139 (emphasis added).

¶18The Manual’s Appendix 21 contains the drafters’ comments on the rule:

February 1986 amendment: R.C.M. 922(b) was amended by adding a new paragraph (2) as a conforming change to the amendment in R.C.M. 1004(a) making unanimity on findings a precondition to a capital sentencing proceeding. The Rule and the Discussion also preclude use of the reconsideration procedure in R.C.M. 924 to change a nonunanimous finding of guilty to a unanimous verdict for purposes of authorizing a capital sentencing proceeding. Thus, if a nonunanimous finding of guilty is reaffirmed on reconsideration and the vote happens to be unanimous, the president of the court-martial does not make a statement as to unanimity.

¶19Analysis, R.C.M. 922(b), App. 21, MCM, 1984, A21-62 (emphasis added).

¶20The “conforming change,” referred to above, is explained in the drafters’ comments to R.C.M. 1004(a), which provides court-martial sentencing procedures in cases arising after the Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

February 1986 Amendment: ____ The new subsection requires a unanimous verdict on findings before the death penalty may be considered____ This is an exercise of the President’s powers as commander-in-chief, and is not intended to cast doubt on the validity of the sentence in any capital case tried before the effective date of the amendments.

¶21Analysis, R.C.M. 1004(a), App. 21, MCM, 1984, A21-65.

¶22IV.

¶23Notwithstanding these amendments, Rule for Courts-Martial 922(e) still facially precludes the military judge from questioning the members about their deliberations and voting except as may be permitted in Mil. R.Evid. 606. This rule is based on the requirement in Article 51(a) for voting by secret written ballot and constitutes an intended departure from civilian practice (see Fed. R.Crim.P. 31(d)). R.C.M. 922(e), Analysis, App. 21, Manual for Courts-Martial, United States, 1984.

¶24Although neither appellate defense or government counsel has addressed the issue in *646either their pleadings or in argument, I question the applicability of this rule in the death penalty case. The policy underlying the rule shields the members from disclosing whether they voted guilty or not guilty in the context of a system that requires a two-thirds majority to convict. Such is not the situation in death penalty cases where unanimity on the findings of guilty is a prerequisite to imposition of the death sentence. R.C.M. 1004(a)(2). Polling in that context would ensure that all members voted for a finding of guilty. Consequently the policy underscoring Fed.R.Crim.P. 31(d) would appear the more applicable. That rule provides that when a verdict is returned by the jury, but before it is recorded, the members of the “jury shall be polled at the request of any party or upon the court’s own motion (emphasis added).” Mackett v. United States, 90 F.2d 462 (7th Cir.1937), cited in the Notes of Advisory Committee on Rules, 1944 Adoption, holds “that the right of a defendant to poll the jury in a criminal case is a substantial one and when denied is error which requires a reversal.” Id. at 466. The object of the poll is “to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent.” Id.

¶25If I am correct that all members may be polled upon request as to their unanimous finding of guilty in a capital ease, the natural extension of such a position is that upon request, as here, appellant has the military due process right to a poll on the question whether the unanimous vote of the members was their initial vote as well. Analysis, R.C.M. 922(b), App. 21, MCM, 1984, A21-62. Any denigration of the Discussion or Analysis provisions in the Manual that set forth the prohibition against going forward as a capital case after a nonunanimous finding of guilt has resulted ought not to be countenanced in this of all cases, a death case. Even the lead opinion (at footnote 3) would subscribe to the position that this prohibition has the force of law.

¶26Thus, I would hold that defense counsel, having made the request that he did to poll the members as to the number of times they voted before announcing their verdict, preserved his right to such a poll and that the judge’s determination not to permit the exercise of that military due process right constituted reversible error.

¶27V.

¶28Within his pleadings, appellant stakes his position on the eighth amendment’s requirement for a “heightened degree of reliability in any case where a State seeks to take the defendant’s life (footnote omitted).” Darden v. Wainwright, 477 U.S. 168, 188-89, 106 S.Ct. 2464, 2475, 91 L.Ed.2d 144 (1986) (Blackmun, J., dissenting). In 1988, Justice Marshall pointed out that the awesome severity of a death sentence makes it qualitatively different from all other sanctions, and for this reason, the Supreme Court has emphasized the greater need for reliability in capital cases, Satterwhite v. Texas, 486 U.S. 249, 262-63, 108 S.Ct. 1792, 1800-01, 100 L.Ed.2d 284 (1988) (Marshall, J. dissenting) and that this rationale requires that “capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding,” citing Strickland v. Washington, 466 U.S. 668, 704, 104 S.Ct. 2052, 2073, 80 L.Ed.2d 674 (1984) (Brennan, J., concurring in part and dissenting in part).

¶29Specifically, appellant contends that here the military judge should have instructed the members that they could not reconsider a nonunanimous finding for the purpose of rendering a unanimous verdict, thus enabling a capital sentencing to follow. R.C.M. 922(b), Discussion. He asserts that the plain language of the authorities cited above demonstrates that the court-martial process, by its own rules, requires the government to produce an initial unanimous vote, before an accused is rendered “death eligible” and thus, subject to a capital sentencing hearing. Appellant’s ultimate position is that the panel’s first vote rendered petitioner ineligible for a death sentence.

¶30The government, on the other hand, perceives no limitation in the Rules for Courts-Martial on the number of votes that may be taken on any finding of guilty at any time prior to the announcement of that finding in *647open court. The government asserts that R.C.M. 922(b)(2) prohibits reconsideration of a nonunanimous vote of guilty only after that vote has been announced in open court if the reconsideration is with a view to rendering it unanimous. Because no more than one vote on findings was announced, and that one vote reflected a unanimous verdict, the government sees no need for the implementation of R.C.M. 924(b) reconsideration procedures, which presuppose a prior announcement. Additionally, the government submits that R.C.M. 923 prohibits impeachment of the vote at issue on the findings for any reason beyond the three categories recited under Mil.R.Evid. 606(b),8 and that any procedural irregularity with respect to the manner in which the vote was conducted would not satisfy any of the three: extraneous prejudicial information, outside influence, or unlawful command influence.

¶31VI.

¶32At the outset, I would reject the government’s contention that the reconsideration procedures of R.C.M. 924(b) presuppose pri- or announcement of findings in open court. We have been cited to no authority for such an imaginative, but well articulated proposition, nor has our research disclosed any support for this novel idea. In fact, the common practice and understanding of courts-martial practitioners is to the contrary. See United States v. Perez-Pagan, supra, 47 C.M.R. at 720 (military judge instructed that the court members could reconsider any finding of guilty before its announcement in open court); Military Judges’ Benchbook, Department of the Army Pamphlet 27-9, May 1982, § 2-52 (no reference to announcement of findings as the triggering mechanism for reconsideration procedures, rather only that a finding has been reached and a reballot has been proposed by any member). In this case, the judge instructed in similar fashion: “After you vote on the Specification of the Charge, the junior member will collect the ballots. They will be reviewed by the President, who will announce the finding.... You of course, may reconsider any finding prior to its being announced in open court.” Record at 1466-67. Thus, if we are to accept the depositions of the members, we find that the reconsideration procedures mandated by R.C.M. 924(b) would have been necessary.

¶33VII.

¶34I turn then to the question whether the court-ordered depositions of the members now should be considered in the resolution of the specified issue qua assignment of error. Taking a step back to obtain a broader perspective, the question becomes which interest is paramount — the policy considerations underlying Mil.R.Evid. 606(b) relating to the sanctity of the verdict of a jury (or members) or the heightened requirement for reliability in the death determination process? I begin .with the wisdom of Justice Cardozo:

For the origin of the [juror’s] privilege we are referred to ancient usage, and for its defense to public policy. Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world. The force of these considerations is not to be gainsaid. But the recognition of a privilege does not mean that it is without conditions or exceptions. The social policy that will prevail in many situations may run foul in others of a different social policy, competing for supremacy. It is then the function of a court to mediate between *648them, assigning, so far as possible, a proper value to each, and summoning to its aid all the distinctions and analogies that are the tools of the judicial process.

¶35Clark v. New York, 289 U.S. 1, 13, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933).9

¶36The surfacing of the possibility of multiple voting on findings in this case, following hard on the heels of United States v. Mabe, 30 M.J. 1254 (N.M.C.M.R.1990), affd 33 M.J. 200 (C.M.A.1991), triggered an immediate and justified quest on the part of both appellate defense and government counsel to fully investigate any hint of unlawful command influence to ensure these trial proceedings were fairly conducted. The interrogatories initially proposed by appellate defense counsel, as enlarged upon by appellate government counsel and adopted by this Court, focused upon this concern, but in hindsight, were insufficiently tailored to recognize the policy considerations underlying Mil.R.Evid. 606(b). Thus, we find ourselves in the paradoxical position of lauding both sides for their sincere desire in laying bare any possibility of improper influence, yet flagellating ourselves for placing our imprimatur upon proposed interrogatories, the scope of which exceeded their intended purpose, no matter their praiseworthy goal.

¶37We recognize that Mil.R.Evid. 606(b), tracking the proscriptions of its Federal Rule counterpart, prohibits a court member from “testifying] as to any matter or statement occurring during the course of the deliberations of the members of the court-martial.” This rule, protective of the sanctity of juror deliberations and the finality of verdicts, yields to more heightened due process concerns when the question is (1) whether extraneous prejudicial information was improperly brought to the attention of the members, (2) whether any outside influence was improperly brought to bear upon any member, or, unique to military practice, (3) whether there was unlawful command influence.10

¶38The historical underpinnings of the current rule are the subject of both law review and treatise. See, e.g., 8 Wigmore, Evidence, §§ 2352-2355 (McNaughton rev. 1961); Crump, Jury, Misconduct, Jury Interviews, and the Federal Rules of Evidence: Is the Broad Exclusionary Principle of Rule 606(b) Justified?, 66 N.C.L.Rev. 509 (1988) (hereinafter Crump article); Mueller, Juror’s Impeachment of Verdicts and Indictments in Federal Court under Rule 606(b), 57 Neb. L.Rev. 920 (1978); Thompson, Challenge to the Decisionmaking Process: Federal Rule of Evidence 606(b) and the Constitutional Right to a Fair Trial, 38 Sw.L. J. 1187 (1984); Note, Impeachment of Verdicts by Jurors— Rule of Evidence 606(b), 4 Wm.Mitchell L.Rev. 417 (1978). '

¶39As the Crump article points out, the first significant federal case to address the admissibility of juror affidavits was United States v. Reid, 53 U.S. (12 How.) 361,13 L.Ed. 1023 (1851), a case involving murder on the high seas. There the affidavits of two jurors stated that each had read a newspaper account of the evidence presented at trial prior to reaching a verdict, but that those accounts had not influenced their decisions. Placing to the side the certified question whether the affidavits constituted competent testimony, the Supreme Court held that because there was nothing in the newspapers calculated to influence the jurors’ decision, and interestingly, taking the affidavits at face value, because both jurors had sworn that the papers had not the slightest influence on their verdict, no ground for a new trial lay. The Court declined to fashion any general rule on the admissibility of such affidavits, suggesting only that such evidence “ought always to be received with great caution,” but'reeogniz*649ing that “cases might arise in which it might be impossible to refuse them without violating the plainest principles of justice.”

¶40The next major Supreme Court case to consider the issue was Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), in which petitioner faced the death penalty as a result of his murder conviction. In support of his motion for new trial, Mattox offered affidavits of jurors that asserted two types of juror misconduct. The affidavits of two of the members alleged that after the case had been submitted to the jury, the bailiff had advised some number of them that petitioner had previously killed two others. Affidavits from these two jurors, and several others, alleged that members of the jury had read a local newspaper account of the trial during their deliberations. Reversing the district court’s decision not to accept the affidavits, the Court recognized the opinion of Woodward v. Leavitt, 107 Mass. 453 (1871), as representing the weight of authority on the subject.

[T]he evidence of jurors as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.

¶41Mattox, 146 U.S. at 149, 13 S.Ct. at 53. The Court believed that the “interests of justice would be served particularly well by an exception [to the common law rule to exclude] that allowed jurors to testify to misconduct in which they had engaged while determining the petitioner’s fate in a capital case, because an individual’s life was at stake.” Crump, S., 66 N.C.L.Rev. at 518.

¶42Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), is the most recent Supreme Court decision in the area. There the Court granted certiorari to consider whether an evidentiary hearing, to include juror testimony, was required to resolve allegations, presented in the form of juror affidavits, of juror alcohol and drug use during trial. During her extensive review of the legislative history surrounding the passage of Federal Rule 606(b), Justice O’Connor recognized that the Senate Report both criticized and rejected the House version of the Rule.

Although forbidding the impeachment of verdicts by inquiry into the jurors’ mental processes, [the House provision] deletes from the Supreme Court version the proscription against testimony ‘as to any matter or statement occurring during the course of the jury’s deliberations.’ This deletion would have the effect of opening verdicts up to challenge on the basis of what happened during the jury’s internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judge’s instructions or that some of the jurors did not take part in deliberations.

¶43The Court found that “Congress specifically understood, considered, and rejected a version of [the rule] that would have allowed jurors to testify on juror conduct during deliberations, including juror intoxication,” such juror intoxication not being an “outside influence” about which jurors may testify to impeach their verdict. Tanner 483 U.S. at 125, 107 S.Ct. at 2750; see also Davis v. United States, 47 F.2d 1071 (5th Cir.1931) (juror incompetent to testify that improper argument was made by the jurors in the jury room as to defendant’s failure to testify, and that it had effect in forming the verdict). In a similar vein, the Third Circuit Court of Appeals has held that even if a juror were unable to hear portions of the evidence, an appellant would not be entitled to post-conviction relief as a matter of law because under Fed.R.Evid. 606(b) the juror would be incompetent to so testify. Government of Virgin Islands v. Nicholas, 759 F.2d 1073 (1985).

¶44As noted in the Crump article, however, the Tannerdecision leaves absent any test for determining what elements in the nature of the allegations of jury improprieties make the difference between irregularities that will qualify as “external” and those that will not. As the article notes, the TannerCourt brought the matter full circle by acknowledging that “substantial if not wholly conclusive evidence of ineompetency” might qualify as showing external influence. “The opinion in Tannerthus leaves open the possibility *650that a jury composed of twelve blind drunks at the time of deliberations might be the proper subject of inquiry.” Crump, N.C.L.Rev. at 524.

¶45Courts and scholars have recognized exceptions to Federal Rule 606(b) that are not set forth in the rule or its legislative history. These exceptions include situations where a member has committed perjury during voir dire, and more pertinent to our case, where a clerical error has been committed, or in those instances styled as “egregious situations.” Impeachment of Jury Verdicts: Tanner v. United States and Beyond, J. Diehm, 65 St. John’s L.Rev. 389 (1991).

The term “common law egregious situation exception” describes the concept that although evidence obtained from a juror may be barred by Rule 606(b), such evidence may be admitted in cases of extreme prejudice. While neither the terms of the exception nor its basis have been clearly defined, support for the doctrine is found in some federal decisions, including those of the United States Supreme Court. In the 1915 case of McDonald v. Pless, [238 U.S. 264] [, 35 S.Ct. 783, 59 L.Ed. 1300] the Court ruled that the jurors were incompetent to testify, but noted that “it would not be safe to lay down any inflexible rule because there might be instance in which such testimony of the juror could not be excluded without “violating the plainest principles of justice.”

McDonaldwas decided long before Rule 606(b) was enacted, but cases decided since its enactment have indicated that the doctrine enjoys continued vitality. The TannerCourt did not specifically adopt the principle, but acknowledged that the common-law egregious situation exception may continue to exist.11 More recently, the United States Court of Appeals for the Seventh Circuit [in Shillcut v. Gagnon, 827 F.2d 1155, 1159 (1987) ] noted, “further review may be necessary in the occasional case in order to discover the extremely rare abuse that could exist even after the court has applied [Rule 606(b) ] and determined the evidence incompetent.”

____ One reason for the courts’ continued recognition of the egregious situation exception may be that if the alleged impropriety is so serious as to deny a party due process of law, constitutional requirements will override the specific terms of Rule 606(b).

¶46Id.at 423^424 (footnotes omitted) (footnote added). The article continues on to address a second and equally pertinent exception to the general rule of Tanner,

The [clerical error] exception is generally viewed as permitting consideration of juror affidavits and other forms of evidence to prove that the verdict was reported erroneously or that the verdict was never agreed upon by the requisite number of jurors. The federal courts have distinguished between the impermissible practice of “interrogating] a juror concerning what he meant by his verdict,” and the use of a juror’s affidavit “to show that the verdict delivered was not that actually agreed upon,” which is permitted. The courts have also held that a juror affidavit is admissible “to show the true verdict or that no verdict was reached at all.” While these cases were decided before the enactment of Rule 606(b), at least one scholar is of the opinion that the clerical error exception will survive in the federal system.12 It has also gained acceptance on the state level

¶47Id.(footnotes omitted) (footnote added).

¶48A juror is competent to show that a verdict is not the true finding of the jury by reason of a mistake. Devitt, Blaekmar, Wolff, *651O’Malley, Federal Jury Practice and Instructions § 5.16 (1992). Moreover, Fed. R.Evid. 606(b) does not bar testimony by a juror that all of the jurors agree that through inadvertence, oversight, or mistake, the verdict announced was not the verdict on which agreement had been reached. Continental Casualty Co. v. Howard, 775 F.2d 876 (7th Cir.1985). And, the affidavit of a juror in a criminal trial is admissible to show that the verdict delivered was not the verdict actually agreed upon. United States v. Dotson, 817 F.2d 1127 (5th Cir.), vacated in part on other grounds, 821 F.2d 1034 (1987); accord 8 Wigmore, § 2355, p. 718 (McNaughton rev. 1961).

¶49Under this second exception to the rule of juror incompetency I would conclude that it was the original nonunanimous vote on the findings of guilt which became the “true” verdict for the purposes of determining whether appellant became death eligible, i.e. the subsequent unanimous verdict read to the court by the members was in error since it was not the critical ballot. Alternatively, one well might conclude on the facts of the case before us that the first exception for egregious situations should apply. Under' that view, Mil.R.Evid. 606(b) should not be allowed as a shield to deflect from further review assertions of multiple voting that has resulted in appellant’s death sentence without procedural due process of law.

¶50VIII.

¶51Following the point in the trial after which the military judge responded to the President’s question on the members’ freedom to reconsider their findings, there is no indication that the members were on notice of the grave significance of their initial vote. In fact, they had only moments earlier been given what amounts to a standard instruction:

Bearing in mind, as I’ve just said, that a finding of guilty results if at least two-thirds of the members vote for a finding of guilty for the offense before the court. The President, if you find the accused guilty of the offense charged, the President of the court will note whether the vote was unanimous. If the accused was found guilty and the vote was unanimous, the President will announce such unanimity as a part of the announcement of the finding of guilt. If the accused is found guilty, but the vote is not unanimous, no announcement will be made as to lack of unanimity.

¶52Record at 1466. In the absence of instruction as to the law by the judge, court members cannot be presumed to know a technical legal rule of procedure. United States v. Keith, 4 C.M.R. 34 (C.M.A.1952).

¶53In United States v. Greene, 36 M.J. 1068 (A.C.M.R.1993), our fellow service court was confronted with a similar problem to the one we now face. There the trial judge failed to instruct the members that their voting on a proposed sentence during the course of deliberations “shall be by secret written ballot.” On review, the Army Court first distinguished its prior precedent in concluding there was no plain error, and then tested the error for prejudice. Recognizing that if a court votes without using secret written ballots, it is possible for unlawful outside concerns or seniority in rank to influence a member’s vote, the Court accepted the government appellate counsel-sponsored affidavit of the junior member of the court that the members had in fact utilized a secret written balloting procedure.13

¶54I am not unmindful of the general proposition that the members’ collective mental process is not the proper subject of judicial scrutiny, see Scogin v. Century Fitness, Inc., 780 F.2d 1316 (8th Cir.1985);14United *652States v. D’Angelo, 598 F.2d 1002 (5th Cir. 1979) (applying the general rule, but noting that appellant did not claim that the verdict was not unanimous),15 yet here we searched only for the number of votes taken. I do not seek to know the mental processes of the members as to why multiple votes may have been taken. This is not a case such as Perez-Pagan, swpra, where the members disregarded the judge’s directive to return to the courtroom for further instructions in undertaking the reconsideration process. There, notwithstanding their disregard of the judge’s instructions, the members had the legal ability to proceed from their apparent not guilty findings to reach their ultimate determination of guilty. In this case, if a nonunanimous finding of guilty resulted from the initial vote, there was no longer any legal ability to move in to the death determining process — -no instruction on reconsideration would have permitted such a result.

¶55IX.

¶56To disregard the depositions we ourselves ordered would prevent what in this case is the only method of proving that appellant has been denied due process by the members’ multiple, and initially nonunanimous, voting resulting in appellant’s death eligible position. Cf. United States ex rel. Owen v. McMann, 435 F.2d 813 (2nd Cir.1970) (after considering the “nature of what ha[d] been infiltrated [into the jury room] and the probability of prejudice” based upon juror affidavits giving rise to juror testimony as to personal and adverse information known of the defendant by the jurors, found such a probability of prejudice that the verdict was deemed inherently lacking in due process). “The rule of juror incompetency cannot be applied in such an unfair manner as to deny due process.” Schillcutt v. Gagnon,16827 F.2d 1155, 1159 (7th Cir.1987). In the occasional case, further review may be necessary “in order to discover the extremely rare abuse that could exist even after the court has applied [Rule 606(b) ] and determined the evidence incompetent.” Id.

¶57We have all explored the options in this case, and, having done so, I find none to my liking. To have ordered further hearings under United States v. DuBay, 37 C.M.R. 411 (C.M.A.1967) in order to clarify the responses obtained from the depositions would have served only to intrude further on the sanctity of the members’ deliberation in the absence of any indication of unlawful command influence. See, e.g., Sullivan v. Fogg, 613 F.2d 465 (2nd Cir.1980) (following court-ordered psychiatric examination of juror post-trial, appellant had due process right to cross-examine doctor’s opinion of competen*653cy, but not to have juror examined again); but cf. Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring) (in most instances a postconviction hearing will be adequate to determine whether a juror is biased).17

¶58I am thus left with a reasonable, if not substantial, doubt as to the reliability of the death-determining process in this case based upon the responses under oath of three of the court members. Article 66(c), UCMJ; United States v. Cole, 31 M.J. 270 (C.M.A. 1990). I believe on the facts of this case that the policy considerations expressed within Mil.R.Evid. 606(b) to protect court members from harassment and assuring finality of verdicts must yield to the protection of an accused’s constitutionally based due process rights.

¶59Accordingly, I would set aside appellant’s sentence of death.