Military death row inmate Ronald Gray’s habeas case has been briefed and pending in the U.S. District Court for the District of Kansas since 7 January 2010.  On Thursday, Judge Rodgers issued this order.  Judge Rodgers accepted additional arguments that Gray’s replacement team of habeas counsel had moved that he accept.  He also gave the United States 30 days to file a surreply.

11 Responses to “Order issued in Gray v. Gray capital habeas case”

  1. Socrates says:

    Gray is no longer the Commandant at USDB. Shouldn’t the case caption change accordingly?

  2. 7-up says:

    Gray should have be excuted two years ago for the rape and murder of five women in Fayetteville, NC 20 years ago.

  3. Anonymous says:

    I am sure that Col. Sullivan would agree that, if anyone should be executed, it is this guy.

  4. Phil Cave says:


  5. Dew_Process says:

    Does anyone around these parts know who Gray’s current habeas attorneys are? I had thought that the Court assigned a Federal Public Defender’s Capital Litigation attorney after Gray’s original attorney had health problems. But, the reference to “pro bono” counsel seemed puzzling.

  6. John O'Connor says:

    The docket indicates that counsel is the Federal Defender capital litigation folks, along with local Kansas counsel.

  7. Eastbound says:

    How can I obtain the exact date when Ronald Gray arrived at Ft. Bragg. I am aware of what is printed in media reports but a confirm date would be more useful.


  8. Anonymous says:

    I hate to sound like Clint Eastwood in Unforgiven, but since when did “deserve” have anything to do with it? Just about everyone of these guys who have had their cases set aside deserve it. See Ronnie Curtis for one.

  9. Dew_Process says:

    Thanks JO’C,
    The local counsel must be doing the pro bono thing.

    While as in most DP cases, there are a myriad of issues in Gray, there is an inter-related cluster of issues in his case that are “ripe” for SCOTUS review.

    1) Can the DP be imposed constitutionally, when the panel adjudicating it, consisted of less than 12 members over the defendant’s objections?

    2) What is the effect on the adjudged DP where after the panel falls below 12 members, the Trial Counsel affirmatively refuses to seek additional members be detailed by the CA?

    3) What, if anything, is the impact on the adjudged DP where Congress amended the UCMJ to require 12 member panels in DP cases, prior to action by the CinC?

    DISCLOSURE: I worked on Gray’s first foray to SCOTUS, exactly 10 years ago. I’m not saying that the issues I listed above will be worded that way, but they convey some of what’s out there in Gray’s habeas litigation.

  10. Dwight Sullivan says:


    The panel size issue played out in a particularly interesting way in the Marine Corps capital case of United States v. Parker, which remains on direct appeal. In Parker, eight members remained following voir dire and challenges. The CA agreed to a defense request to appoint additional members to ensure that the panel that would actually consider the case had 12 members. R. at 475. But the military judge refused to let the CA do so. The MJ ruled that R.C.M. 505(c)(2)(B) “prohibits the addition of new members after assembly unless the court is below quorum. Quorum is five. Such a procedure by the convening authority would be improper and in violation of the manual. I cannot permit it, or I would risk reversal.” R. at 476. The MJ then added: “I would also state for the record for anyone who is concerned about the constitutionality of the death penalty with less than 12 members, I would suggest that they review the Florida statute. That scheme has been approved many times by the U.S. Supreme Court, and although there is a requirement to have a unanimous verdict of 12 members to convict, to adjudge death in Florida you only need 7 of 12; and that very low percentage is much less of a burden for the government than getting eight out of eight which is required in this case since we have eight members.” R. at 476-77. But the military judge had it wrong. In Florida, a jury can’t “adjudge death.” Rather, the jury just renders an “advisory sentence.” Fla. Stat. Ann. § 921.141(2). The trial judge, who is the actual sentencing authority under Florida law, can reject the advisory sentence and impose life or death regardless of which the jury recommended. Id. at § 921.141(3).

  11. Phil Cave says:

    How would the judge get reversed? Allowing a panel of 12 at the wish of the CA would redound to the benefit of the accused would it not.