Military death row inmate PVT Ronald Gray’s attorneys indicate they will file writ appeal
In this response to the respondents’ status report in the pending habeas litigation in Gray v. Belcher, 5:08-cv-03289-RDR, military death row inmate PVT Ronald Gray’s counsel today indicated that they will file a writ appeal with CAAF challenging ACCA’s denial of coram nobis relief.
Of course they are . . . this isn’t news. That is what appellate death row counseil do – and should do – file file file to keep the litigation going.
I personally am against the death penalty, but i find death penalty litigation to be atrocious. It isn’t about resolving issues, rather it is about generating issues. I get it and don’t disparage the counsel. I just think that the direct and collateral appeals should be streamlined so that they are not prolonged - - – say 5 years tops. I know 5 years is an arbitrary number, but the system could be changed so that there is MORE THAN ADEQUATE FAIR DUE PROCESS and we get on with it.
Again, i’d vote against the death penalty. But, where it is the law, we should not make a mockery of the rule of law.
I think if you think that appellate counsel, at least in the military, believe or are told to “file file file” then you are mistaken, at least in my experience. Instead, you come onto a case, having never done death penalty litigation, having to read a ROT that is 1000s of pages long, having to spend months (and I don’t mean 2-3) figuring out what the heck you are supposed to be doing, even then not feeling particularly up to speed or knowledgable about capital litigation, and then frantically trying to investigate (usually mitigation), interview, and compile information, and even after you write a brief 2-3 years later, you feel absolutely like you probably missed stuff.
I would heartily disagree it is “more than adequate fair due process.” A long process is the price you pay for tolerating a system with the flaws we do.
I am with Stewie. I tried US v.Bozicevich last Spring/Summer. Never done trial level capital litigation before. The jury selection alone is 1900+ pages. Fortunately, we had a non-unanimous verdict, so most if not all, of the jury selection issues have been mooted. There are still hundreds of appellate issues, from p misconduct; to false testimony by G expert about qualifications. If I hadn’t actually been there, I never would have believed it.
Well, I’m with Stewie too. He makes my point that the system is broken. Maybe, the system needs to find a way to keep one appellate lawyer on the case for its duration (likely non-uniformed or reservist). I get that there are errors, just saying 5 years is a long time and most of these things last 20 or more. That is the part that is inexcusable.
Lastly, my original point was actually broader than military justice. Cases last just as long everywhere else except Texas.
Separate point is that we should do away with capital murder in the military. Waste of resources. LWOP is the outcome every time. Sometimes the jury/judge decides that up front and other times it takes 20 years and 10 million dollars to arrive at the same result.
Well I can’t speak with much experience on civilian DP litigation, but there’s a long history of case law there that suggests while they are light years ahead of us, they are still figuring it out. I did once watch a state DP trial in Texas, and let me tell you…the defense finished in two hours (with two accused tried jointly). Luckily, they were under 18 and thus their sentences were later commuted to life thanks to the Supremes, but they didn’t receive much of a defense at all.
I agree LWOP. And heck, give em bread and water, nothing but books, paper and pen. Make it as harsh as you want within reason, but keep them alive in case it turns out there was a mistake. Better 10000 guilty men get LWOP then one single innocent guy gets his life snuffed out. And anyone who thinks we haven’t executed an innocent man is sticking their head in the sand.
Having worked on one small aspect of Gray’s case literally 12 years ago, that Record is atrocious. But, ironically his case prompted the enactment of Art. 25a, UCMJ, generally requiring 12 members in capital cases – a procedure in place when George Washington commanded the Revolutionary Army. Why it hasn’t been applied to Gray’s case [he had a 9 member panel, which the accused objected to) is one of the many reasons his habeas litigation is “robust.”
Well, Ring should apply to all military cases after it came out, but I think we will see the same phenomenon, that is they will change how DP cases are charged and investigated and the rest as it relates to Ring, but will find it mighty fine that we didn’t do it that way in the post-Ring/pre-change cases.
At least at the trial level the defense should preserve every possible issue for appeal and as such assist the appellate counsel (a well prepared 1105 should not only ask for clemency but assist the appellate counsel to identify issues). Too many young or inexperienced defense counsel allow the judge to frame issues in a manner that will void or confuse the issue for appeal. That applies to all cases, of course, but even more to capital litigation, which we have no business doing in the military. Most of us are not qualified to defend a death penalty case anywhere, be it at the State, Federal or Commissions (as in defending and enemy combatants) level, and yet the military insists in prosecuting DP cases like that. Our convening authority system is not suited to handle those types of cases as the independence and individuality of action that is fundamental for the military justice system fails miserably to provide the consistency and learned consideration capital litigation requires (and that that the Federal system strives to provide through their capital vetting process).
Maybe death should be different. Maybe the Convening Authority for DP cases should be the service TJAG? Maybe there should be a DP expert on both the government and defense side that is a reservist with relevant experience OR an O-6 billet. And a similar expert on the appellate side for government and defense. Heck, you don’t even need to have one expert for each service — you could have a pool of 2 or 3 for each side for the entire DoD. You raise the bar, assure due process, and avoid most appellate issues that way.
Until there is a truly independent judiciary, the bar will never be raised. Yes, here and there, there have been some truly good military jurists, but like States that elect judges, they seem to be few and far between and the gap keeps widening.
I agree that greater independence is required to truly have a fair and respectable system.
Surprisingly, i’ve been increasingly impressed with elected judge system (10 or 15 year terms), and less impressed with the federal judge model. To be sure, the independence of federal judges is a plus; however, the secretive politicking and campaign donating is disgusting. Anyone, who thinks that federal judges are selected on merit has no idea how the sausage is being made. We end up with lot of bozos with lifetime tenure.