According to this AP report, in response to a question from the members, the military judge in the Hennis case is considering whether the members “could take a second vote on the death penalty after a first vote wasn’t unanimous.”

12 Responses to “AP reports Hennis military judge considering effect of non-unanimous vote on sentence”

  1. John O'Connor says:

    Isn’t the RCM 1009 pretty clear that they can reconsider if a majority votes to do so?

  2. Anonymous says:

    The jury has adjourned for the day and will resume deliberations at 9 a.m. Thursday.

  3. Anonymous says:

    According to the News at 6 ,The jury can take as many votes as it likes for Life or Death. This was last instructions from the Judge before Adjourning. This according to the Media. Wow if I was that LTC that just missed Movement, my Cheeks would be drawing up right about now. Man does the Military have a lot of power.

  4. Phil Cave says:

    Did they take a formal vote? If so, then aren’t the reconsideration instructions the next step. Now, if they took a “straw vote” or two that might be different.

  5. An says:

    If this panel believes this man is actually guilty of what he is accused of, one wonders what someone would have to do to merit the death penalty…

  6. Anonymous says:

    one answer might be, be poor, be a minority…those folks tend to get the death penalty quite often when it is on the table.

  7. An says:

    Oh-well, I think raping and killing a woman and her children would have to pass some sort of threshold, regardless of race…

  8. Article 16 says:

    1. The fact that they had something they’d characterize a non-unanimous vote means they’ve completed voting on RCM 1004 aggravating factors. Given the fact that there a several of those factors that essentially follow from the findings, this gives momentum to the d.p. voters, and those factors would be announced in conjunction with a d.p. sentence.
    2. If there’s an inkling that they did something akin to a straw vote–even though it probably happens all the time, it’s good grounds for asking for a mistrial as to sentencing–secret written ballot is the requirement precisely to protect people from voting and revoting as a matter of group pressure. Deliberations and discussions of sentences are open–but voting is supposed to be a different mode. Ask it or waive it, but I’m not sure there’s a strategic advantage to the sentencing mistrial.
    3. Finally, thinking back to the judge’s denial of Defense request to notify the panel of the accused’s willingness to “waive” all possibility of parole–the easiest argument is this is a denial of the RCM 1004(b)(3) provision that the accused SHALL have broad latitude to present evidence in extenuation and mitigation. Even if legal and technical barriers would actually prevent him from validly waiving parole consideration, his willingness to do so is mitigating. If that’s something that could have been originally included in a Soldier statement (and I don’t know why it couldn’t), then he should be permitted to present it because of a panel member’s question. Supposing he later reneges and actually later applies for parole–unless he had some good excuse for the change of heart, the otherwise forgotten representation at the sentencing proceeding would give the parole board pretty good grounds to doubt the representations made to support parole.

  9. John Baker says:

    This latest issue showcases our system’s inconsistency (perhaps based on inexperience) in the capital arena. Two months ago in Walker, Judge Robinson took the complete opposite tack than Judge Parrish and instructed the members that one vote for life took death off the table – period. I’ve pasted the relevant portion from his instructions (AE 609 p. 13-14) below:

    “When you have completed your discussions, then any member who desires to do so may propose a sentence. You may not conduct any sort of oral straw ballot, instead you write out on a slip of paper a complete sentence. The junior member collects the proposed sentences and submits them to the president, who will arrange them in order of their severity.
    Then, beginning with the least severe and continuing with the next least severe, until a sentence is adopted by the required concurrence, you vote on the proposed sentences by secret written ballot. All must vote; you may not abstain. Vote on each proposed sentence in its entirety. You are reminded that the most severe sentence is the death penalty, so you first must vote on any proposed sentence that includes confinement for life. Members, in this connection, you are again advised that the mandatory minimum sentence is confinement for life.
    The junior member will collect and count the votes. The count is then checked by the president who shall announce the result of the ballot to the members. If even one member votes for a sentence that includes confinement for life, the death penalty is no longer an authorized punishment in this case. If you have at least one vote for confinement for life, but fewer than the required concurrence of at least three-fourths of members, that is 10 of the 13 members, you will have to repeat the process of discussion, proposal of sentences, and voting on the appropriate sentence, which must include confinement for life but may not now include a sentence of death, until you reach the required concurrence. In any subsequent vote, death is no longer an authorized punishment. However, if during your initial vote, each member individually votes for a sentence of death, you have sentenced the accused to death.
    You may reconsider a sentence to death at any time prior to its being announced in open court. If after you determine a sentence to death, any member suggests you reconsider the sentence, open the court and the president should announce that reconsideration has been proposed without reference to whether the proposed re-ballot concerns increasing or decreasing the sentence. I will then give you specific instructions on the procedure for reconsideration. You may not reconsider a sentence to confinement for life.

  10. NARDISH says:

    what a F’ED UP SYSTEM

  11. Snuffy says:

    Yep. But it’s ours. :)

  12. Article 16 says:

    I agree with that judge’s approach. Even if RCM 1009 is pretty clear on the mechanics of reconsideration–allowing reconsideration and revoting on the death penalty would, in my opinion, go to at least the appearance of fairness from the tribunal. Everything has to be copacetic, and it’s obviously not, so the prosecution would probably be better off relenting on this.

    The fact that there is a disparity like this when judges can easily email each other sentencing instructions and talk mechanics shows a big blunder–in my opinion.