Marisa Taylor of McClatchy Newspapers, who has spent considerable time and developed considerable expertise covering the military justice system, has written three articles about the military death penalty that were posted on McClatchy’s website today here, here, and here.

8 Responses to “McClatchy articles on military death penalty”

  1. Dew_Process says:

    There are also links to other good MJ coverage, e.g., appellate delays.

  2. stewie says:

    “‘Do we have inexperienced counsel? Of course. Every criminal justice system has inexperienced counsel,’ said Col. Chuck Pede, who oversees criminal law policy for the Army’s Office of the Judge Advocate General.

    ‘But the military justice system is one of the fairest, healthiest criminal justices systems in the world, and every day we spend enormous resources to ensure that due process is provided not only to those accused of crime but to the victims of crime as well.'”

    Respectfully, I’d have to strenuously disagree with COL Pede. The second half is absolutely true, in non-capital cases. It is patently not true in capital cases.

    As for inexperienced counsel, using the army as an example, we have maybe 2-3 “experienced counsel” in capital cases, and I don’t believe those counsel have done more than 3 capital cases at any level. In the civilian world they wouldn’t be considered “experienced counsel” for capital cases, but in the military world, they are the creme de la creme (and some of the folks I am thinking about like COL Mulligan or LTC Carpenter are in fact outstanding attorneys and officers).

    We do so few so maybe the answer is let the appellate world handle any issues (since the volume won’t justify/allow us to get experienced at the trial level), except of course, we don’t have any more capital experience at the counsel or judge level there either.

    Then we also refuse to hire civilian experts at either the trial or appellate level and watch as capital accused/convicts go through sometimes a dozen attorneys during the entire process.

  3. Charles Gittins says:

    Well, I am hardly “inexperienced counsel” in a global sense, but my first capital case over the past 18 months and 13 weeks this year was the hardest I ever worked, despite having two great Army attorneys (also who had never tried a capital case) and two superior Army paralegals. In addition, the pressure imposed because we were working with the specter of the ultimate penalty hanging over our heads (and the client’s, obviously) made every day a pressure filled event, particularly in court. Combine prosecutors who were inexperienced and who didn’t understand Brady and who committed errors for which a federal district judge would have unquestionably declared a mistrial and you have a recipe for an unreliable result if the DP had been imposed. Fortunately, our Military Judge understood the need to provide the defense with appropriate, qualified expert assistance for which the Army paid handsomely, and appropriately so. Now that I have done one capital case as a first chair, I am probably considered “learned counsel” by the military for DP cases; a title that could not be further from the truth. My team and my client were fortunate to be able to actually present a defense on the merits, and as a result of that circumstance, we took the DP off the table at the findings stage. If we would have faced a DP at sentencing, I think the result may have been different.

  4. Snuffy says:

    I respect COL Pede a good bit, but he is esposuing the standard Army line “we aint broke so why fix it.” Captial litigation is damn hard to do and either DoD elements should adopt ABA type qualifications and get qualified counsel at trial and appellate level, or they should stay outta the business.

  5. Snuffy says:

    BTW Marisa- great work. I am not sure that the Baldus study helps much or even if it really truely reflects accurately upon the system.

  6. Dew_Process says:

    Col Sullivan probably knows this # off the top of his head, but there are a number of military death row inmates who were convicted by a panel of less than 12, e.g., Ronald Gray. Congress “fixed” that problem in adding Art. 825a, UCMJ, but didn’t address (as far as I can tell) the retroactivity of such.

    In practice, among the different Services and among the different Convening Authorities therein, we seem to have reverted to a pre-Furman era. As Justice Stewart said, concurring in Furman, “I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” 408 U.S. at 310.

    The piece on racial discrimination, could have benefited from Justice Thurgood Marshall’s exhaustive examination of that issue in Furman.

    Perhaps a better process would be to do something similar to the DoJ’s within the DoD/GC’s office:

    Under existing Justice Department procedures, United States Attorneys cannot decide unilaterally whether to seek the death penalty in cases involving capital charges, but are required to submit all such cases to a central review procedure. These cases are reviewed by a committee of senior attorneys, and the Attorney General personally makes a final decision whether to seek a capital sentence.

  7. Phil Cave says:

    DP, the DoJ method has been proposed and rejected multiple times. I say that not to argue nobody should bother raising it again. Just that they have been told so many times and rejected sound advice so many times that . . . well . . . Interesting that there is a level of certainty and “equality” across the country in federal district court, but we can’t even get some level of equality among the same United States Services jurisdictions.

  8. stewie says:

    We should absolutely do it the way the DOJ does it with some modifications. We have no difference in how we prefer a capital case from how we prefer a marijuana case. We have no formalized difference between how we conduct an Article 32 in a capital case, and how we do it in a petty larceny case.

    The rules don’t even require the presentation of mitigation and extenuation evidence to the CA in the pretrial advice, in fact, the rule specifically says it is not legal error to fail to do so.

    How do you have confidence in the military justice capital trial process when you can’t even be bothered to have an actual capital trial process until it gets all the way to referral?