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?

15 Responses to “Of commissions and capital courts-martial”

  1. Southern Defense Counsel says:

    This brings up one of my favorite subjects – CAs denying defense requests just because you can. I think in a capital case the CA should bend over backwards to accompdate the defense. It is hard to appeal the CAs approval of a capital counsel or a mitigation specialist. I think sjas should be telling their client pay now or pay later, your choice. If the case is going capital it should be bullet proof and defense requests, if even colorable, should be granted as a matter of course. If not, don’t refer capital. Game playing is what creates fertile ground on appeal where “death is different.”

  2. Southern Defense Counsel says:

    As a followon I’d also like to suggest that the federal defenders office could provide capital qualified counsel, reducing the possibility of paying 100k for a big building lawyer.

  3. Phil Cave says:

  4. Dew_Process says:

    They activated at least one federal public defender for the Military Commission cases.

    While CA’s routinely deny experts simply on funding grounds for the defense, it never ceases to amaze me as to some of the “experts” that the government actually pays. But, again Military Judge’s also have a role to play here when CA’s deny funding or restrict funding.

    The worst case scenario is going to be if a civilian counsel with zero military justice experience, gets retained….

  5. anonymous says:

    In a capital case, refusing a Defense expert is penny wise and pound foolish. If the Big G wants to execute, they should be ready to open the check book. Otherwise stand by for the endless feedback loop of appellate litigation.

  6. Anonymous says:

    Let us remember the last completed capital case, Martinez, resulted in an acquittal. Counsel were both members of Army trial defense services. Our counsel represent the government in million dollar contract disputes, non-capital trials, fight in battle on a daily basis; I’m confident the JAG leadership can organize a competent capital litigation team when the need arises. Funding for expert assistance is a wholly separate issue.

  7. JWS says:

    A Hundred bucks in 1849:

    In 2008, $100.00 from 1849 is worth:

    $2,905.57 using the Consumer Price Index
    $2,145.96 using the GDP deflator
    $20,968.14 using the unskilled wage
    $44,472.51 using the nominal GDP per capita
    $602,883.04 using the relative share of GDP

  8. Anonymous says:

    “I’m confident the JAG leadership can organize a competent capital litigation team when the need arises.”

    I’m not, nor given the stats listed elsewhere about percentage of cases overturned in whole or part for IAC are apparently CAAF/Service Courts.

    Not that we don’t have high quality folks who are smart and hard-working. We do. But capital defense is something you need experience doing. Just being really smart and going to a course or two isn’t enough.

  9. LCDR F says:

    In response to Dew_Process:

    Your assertion is incorrect that a FPD was activated for the Military Commission (MC) cases — they were not. There have been six cases referred capital in the MCs: the 9/11 five and US v al Nashiri (USS COLE case). Two military defense counsel were detailed to each case. The John Adams Project (a joint effort by the ACLU and NACDL) provided experienced trial defense lawyers (though some had zero capital experience) to assist with each trial team. Some of the JAP lawyers entered appearances and have been active in the litigation, however, other trial teams did not have much, if any, assistance or participation by civilian counsel. Regardless, the issue is that the assistance by “learned” counsel in some MC cases was gratuitously provided by the donors to the JAP — not by the Government (which, of course, has the constitutional requirement to ensure the accuseds have adequate representation/resources to mount a defense).

    Also, the “sense of the Congress” in the MCA of 2009 was added after an exhaustive lobbying effort by the OMC, Office of the Chief Defense Counsel, and various NGOs to highlight this issue to the congressional staffs. The most important evidence was as follows:

    Of the 12 requests for experts in the capital cases, the CA DENIED ALL OF THEM. This included, every mitigation specialists, investigators, and a mental health expert to the defense team after the MJ ordered a competency hearing to occur b/c the Govt acknowledged the accused had repeatedly been diagnosed by Govt physicians as suffering from a psychotic disorder.

    More information about this topic can be found here:
    (click on the link to Colonel Masciola’s testimony).

  10. anonymous2 says:

    Dew Process – please read the petition filed on behalf for one of the 9/11 accused, in the DC Circuit 09-1238. A judge orders a 706, a mental health problem is acknowledged by both sides, and still the defense gets no expert of its own. A judge then denies the expert access to the accused. Uncontested facst in the record.
    As LCDR F points out, the commissions have not been what you describe as an almost banal and necessary denial of experts by the CA — and the judges have not been there to save the day, by any stretch.

  11. Peter E. Brownback III says:

    LCDR F,

    Reference your post at 1:10 pm on 9 November:

    “In response to Dew_Process:

    Your assertion is incorrect that a FPD was activated for the Military Commission (MC) cases — they were not.”

    Perhaps there is some confusion between yourself and Dew_Process concerning the various stages of the Military Commissions. On 3 November 2005, COL Sullivan, Chief Defense Counsel, detailed MAJ Tom Fleener as defense counsel for Al Bahlul. MAJ Fleener served as Al Bahlul’s defense counsel from that point on, thru several commission sessions in 2006, until the proceedings were stayed following the Supreme Court ruling in Hamdan in June 2006.

    MAJ Fleener was a USAR JA who was activated for the Military Commissions. Prior to his activation, he was a Federal Public Defender in Wyoming.

    Peter E. Brownback III

  12. LCDR F says:

    Judge Brownback,

    Sir, I was aware that MAJ Fleener was activated prior to the passage of the MCA of 2006, however, I was referring only to capital cases referred post-MCA (I don’t believe al Bahlul was a capital case in 2005 but am certain it was not referred capital post-MCA — I invite correction on the case status in 2005). There is at least one current FPD in the OMC-Defense office who was mobilized by the Navy Reserve, however, he has not been detailed to a capital case.

  13. Dew_Process says:

    LCDR F – I was not limiting my Federal PD remarks to simply capital cases. But, if they can be assigned to non-capital ones, surely a federal PD with capital experience can also be assigned.

    Werneke, a federal public defender, is one of four from the Cleveland office representing men held at the U.S. military’s detention center at Guantanamo Bay, Cuba. The office was recently assigned to represent the four men after the U.S. Supreme Court ruled that Guantanamo detainees have a right to seek their freedom in federal court.

    Anonymous2 – you misread my remarks, or I was less than clear. I’m well aware of the Bin Al-Shibh, 706 issues, and the problems associated with that litigation. I have been actively involved in GTMO issues since November of 2001, when the original Military Order creating the MC’s was issued. I helped coordinate the John Adams Project and have advised on a number of cases, e.g., Hicks, Hamdan, Khadr, Rasul [habeas], as well as all of the U.S. “enemy combatant” cases.

    I certainly did not mean to convey the impression that as constituted [even after the MCA’s amendments] that the actual “process” is working, clearly it’s not as the Bin Al-Shibh and Khadr cases graphically show.

  14. Phil Cave says:

  15. Cap'n Crunch says:

    Given the pure amount of scrutiny (and news) on the entire process that is likely to be present in the Ft. Hood case… I would suspect that you will see the CA bend over backward to make sure every i is dotted and t is crossed. Especially where, as here, the facts are so very awful and damning (in other words, don’t game play where you have the guy nailed on the facts). I bet my bottom dollar that the Defendant tries an insanity defense. And as a psychiatrist, he may even know how to present it well. Which presents yet another issue: finding experts in the military psychiatric community who do not know the accused to prevent any appearances of impropriety.