Late last month, Congress passed and the President signed the Military Commissions Act of 2009 as part of the National Defense Authorization Act for Fiscal Year 2010, 123 Stat. 2190, Pub. L. No. 111-84 (2009). The statute includes a section called, “Sense of Congress on Military Commission System,” which provides:
It is the sense of Congress that–
(1) the fairness and effectiveness of the military commissions system under chapter 47A of title 10, United States Code (as amended by section 1802), will depend to a significant degree on the adequacy of defense counsel and associated resources for individuals accused, particularly in the case of capital cases, under such chapter 47A; and
(2) defense counsel in military commission cases, particularly in capital cases, under such chapter 47A of title 10, United States Code (as so amended), should be fully resourced as provided in such chapter 47A.
Id. at § 1807.
Experience teaches us that the same is true of the fairness and effectiveness of capital cases tried in the military justice system. Consider these statistics. Since the current military death penalty system went into effect in 1984, 15 known military death sentences have been adjudged. In two of those cases, the CA commuted the death sentence to confinement for life. Of the remaining 13 cases, three remain on appeal at the CCA level. That leaves 10 cases that have completed direct appellate review. Of those, the death sentence was affirmed in two cases and reversed in eight. In those eight cases, the death sentence was reversed in three cases due in whole or in part to IAC (Curtis, Murphy, Kreutzer, which also involved an erroneous deprivation of resources to the defense counsel). In two of those three cases (Curtis and Kreutzer) the original death sentence was replaced by a life sentence. Resentencing hasn’t yet occurred in the third case, Murphy. This suggests that if a convening authority wants to obtain and preserve a death sentence, he or she should support providing an experienced capital defense counsel to the accused and providing ample resources to the defense team.
Here’s an interesting historical footnote. The last execution in the Department of the Navy occurred on 23 October 1849 when two sailors were hanged for mutiny and desertion. They were two of five sailors convicted of mutiny and desertion arising from their seizure of one of the U.S. Surveying Schooner Ewing’s longboats. All five were sentenced to death, but shortly before the executions were to occur, the Pacific Squadron’s Commodore commuted three of the sailors’ death sentences to 100 lashes each and confinement for the remainder of their enlistments. Here’s the interesting tidbit:
The court-martial began on 8 October 1849 on board the Warren. It consisted of thirteen officers, the largest court allowable under the Articles of War. A prominent San Francisco attorney, Hall McAllister, was hired by the commodore to conduct the defense of the accused men at the rate of one hundred dollars per day.
James E. Valle, Rocks & Shoals: Order and Discipline in the Old Navy 1800-1861 at 106 (1980).
There have been only 49 known capital courts-martial tried throughout all of the armed forces’ branches combined since the current military death penalty system took effect. And the number of such prosecutions has declined over time. There have been only four capital courts-martial tried in the last decade (Martinez and Hill, both of which resulted in acquittals, and Akbar and Witt, both of which resulted in death sentences). With such a small number of cases tried, it’s obviously difficult for the military to maintain a crop of counsel — or judges, for that matter — familiar with the intricacies of capital litigation. Should DOD borrow a page from history and either detail civilian government-employed capital litigators from the Article III system or hire experienced capital litigators as consultants in those rare cases in which a convening authority actually seeks a death sentence?