This week at SCOTUS: I am not aware of any new military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on February 13, 2012.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 1, in the capital case of United States v. Akbar, No. 20050514. The granted issues are:

I. Sergeant Hasan K. Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment to the United States Constitution, at every critical stage of his court-martial.

A. Sergeant Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment and denied his right to representation by counsel qualified under 18 U.S.C. § 3599 (2006), in violation of his rights under the fifth, sixth, and eighth amendments to the U.S. Constitution and Article 36, UCMJ, when his trial defense counsel failed to seek the appointment of qualified counsel to represent Sergeant Akbar in this capital court-martial.

B. Sergeant Akbar was denied his right to effective assistance of counsel when his trial defense counsel failed to adequately investigate appellant’s social history, ignored voluminous information collected by mitigation experts, ceased using mitigation experts, resulting in an inadequate mental health diagnosis because the defense “team” failed to provide necessary information to the defense psychiatric witness.

C. Sergeant Akbar was denied his sixth amendment right to effective assistance of counsel where the trial defense counsel failed to challenge for cause any panel members, even though counsel had multiple causal reasons including actual bias, implied bias, an inelastic opinion against considering mitigating evidence on sentencing, and panel members’ detailed knowledge of uncharged misconduct that the judge specifically ruled inadmissible.

D. Sergeant Akbar received ineffective assistance of counsel during the merits stage of his court-martial when his trial defense counsel conceded guilt to all the elements of a capital offense, in violation of article 45(b), UCMJ, 10 U.S.C. § 845(b) (2002), and devised a trial strategy that was unreasonable and prejudicial.

E. Appellant received ineffective assistance of counsel on sentencing.

F. Sergeant Akbar’s trial defense counsel were ineffective for admitting in [its] entirety appellant’s diary without any substantive analysis and without appropriate regard for the highly aggravating and prejudicial information it contained.

II. When read with other Supreme Court precedent, military case[-]law, and cases from other federal jurisdictions, Ring v. Arizona, 536 U.S. 584 (2002), and its underlying rationale reveal [the] charges were improperly preferred, investigated, and referred, and appellant’s conviction and death sentence was unconstitutionally adjudged.

A. Appellant’s death sentence was adjudged unconstitutionally [sic] where the R.C.A. 1004(c) provisions relevant to his case were not expressly alleged in the charges preferred against him, were not expressly investigated pursuant to R.C.M. 405 and Article 32, UCMJ, and were not expressly referred to his court-martial by the convening authority.

B. Based on the Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002), Congress unconstitionally delegated to the president the power to enact the functional equivalent of elements of capital murder, a purely legislative function.

C. Ring v. Arizona requires that the members find that aggravating factors substantially outweigh mitigating circumstances beyond a reasonable doubt.

III. Sergeant Akbar’s death sentence is invalid because the panel was misinformed about his mental condition at the time of the offenses.

Note: Each party is granted 120 minutes for argument.

This week at the AFCCA: The Air Force CCA’s docket shows no scheduled oral arguments this week.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week.

10 Responses to “This Week in Military Justice – 29 January 2012”

  1. stewie says:

    My personal belief aside that the sentencing should be overturned, it will certainly be interesting to see if ACCA tries to argue that Ring does not apply to the military or it otherwise is satisfied by current military practice. Not sure CAAF will agree if they do so find.
    Would also be an easy out for ACCA to order a new sentencing hearing without having to find IAC.

  2. Don Rehkopf says:

    Is the Brief in Akbar available?  Who’s his appellate counsel?

  3. N says:

    Briefs are here: https://www.jagcnet.army.mil/__85257546006DF36B.nsf/1D21007785089ABB85256B8300731F5F/EAF4069E114615FE8525732F006A412F?OpenDocument#. You’re looking at a 501 page initial brief by appellant (followed by a supplemental, and then a reply, brief). Probably standard for a capital case (maybe?), but still quite a read.

  4. stewie says:

    Probably depends on the case. We don’t do capital trials very well in the military comparably to the civilian world so it might be that 600+ total pages is rare in the capital world. I don’t recall how long the briefs were in other cases like Loving or Grey although I believe they were fairly long as well.

    Also, as you can see, multiple appellate counsel, which is somewhat different from how it works on the civilian side. That ignores the ones that came before those who wrote the brief, and the ones after who will write the brief for CAAF, and the ones after that who will likely argue it before CAAF (assuming ACCA affirms).

  5. Sadley Planning says:

    Am I too much of a consipracy theorist, or is this unusual given his TDS counsel is now representing someone infamous as a civilian?

  6. stewie says:

    Is what unusual?

  7. Mike "No Man" Navarre says:

    Hey I recognize those arguments. I think I know the guy that came up with all of them. And no Army JAG School his name does not rhyme with Wullivan.

  8. stewie says:

    No one person came up with all those arguments (at least the ones fact-specific to Akbar), it was truly a team effort.

  9. Mike "No Man" Navarre says:

    Stewie–I totally agree with you.  That was a poorly worded comment which I would have liked to have deleted right after I posted it.  The Akbar brief looks like a truly Herculean effort by a lot of different people.  I actually emailed CPT Gilman offline and wished him well in the argument.  I do this to myself every few months and should know not to try to say something in a few words that takes probably a little more ‘splainin (see my greater explanation of my obsession with Ring v. Arizona and Apprendi v. New Jersey and their implications on the military death penalty here, here and here).  Thanks for pointing out what I should have noted.

  10. stewie says:

    No worries, just wanted to make it clear how much of a team effort it was. There really were about a dozen CPTs through COLs who did significant work on it, including the current team, plus some free help from some civilian DP expert attorneys who gave a sanity check on the initial brief.

    The two officers who did the majority of the initial brief work on Akbar for the Ring/Apprendi issue were MAJ Shay Stanford with a good deal of help from MAJ Todd Lindquist. They both did a ton of really good work/effort on it. That issue could be the one that wins the day given it gives the court an out in not having to find IAC (even though my personal belief is that it should be clearly tossed on that basis as well, at least for sentencing). I’m confident both current appellate counsel argued it extremely well, but I admittedly don’t know that this is a case that ACCA will do anything but move forward to CAAF unfortunately.