In a lengthy published opinion available here, the Air Force CCA affirms the death sentence adjudged in the case of United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. Jun. 30, 2014). The CCA’s action reverses the earlier decision (72 M.J. 727) (available here) (discussed here) of the court that set aside the death sentence after finding ineffective assistance of counsel by the trial defense team in that it did not effectively investigate and present various types of mitigation evidence.

The court previously split 3-2 on the question of prejudice. This time it splits 4-2, again on the question of prejudice. Senior Judge Marksteiner (who joined a partial dissent in the first decision, finding no prejudice) writes for the majority now, joined by Chief Judge Helget and Senior Judge Harney. Judge Mitchell concurs dubitante. Judge Saragosa (who wrote for the majority in the first decision) dissents in part, and is joined by Judge Peloquin who also writes a separate opinion dissenting in part.

But there is also dissent over the absence of minimum qualification requirements for counsel defending a military member facing the death penalty. Judge Mitchell’s dubitante opinion is about the lack of an express requirement for experienced capital defense counsel in a capital court-martial. Slip op. at 114. Judge Peloquin’s separate opinion addresses this issue as well. Slip op. at 136. Judge Peloquin explains:

In the instant case, the Government opted to detail two trial defense counsel to the appellant. When he was assigned to defend the appellant, the senior military defense counsel, Captain (Capt) DR, had been a member of the bar for two-and-a-half years, had prosecuted six cases of unknown complexity, and had served as a trial defense counsel for twelve months, defending nine cases. He had no capital trial experience and little training on the subject of capital trials60 prior to being detailed. The assisting military defense counsel, Capt DJ, had been a member of the bar for less than three years, had prosecuted 14–15 cases of unknown complexity, and had never served as a trial defense counsel prior to his assignment to the appellant’s defense team. He had no capital trial experience or training prior to being detailed.

The appellant, of his own accord, procured the services of a private attorney, Mr. FS. Mr. FS had been practicing law for 25 years with significant trial and appellate defense experience in courts-martial. However, he had no capital trial or capital appellate-level experience. As the lead counsel, he determined the division of labor among the defense legal team. . . .

None of the appellant’s attorneys met the minimum qualification standards required of capital defense counsel, specific bar admission aside, as adopted in 18 jurisdictions which account for over 80% of the capital cases in the United States. And lead counsel for the appellant’s sentencing case did not meet the minimum qualification standards in any of 24 jurisdictions with minimum qualification standards accounting for 94% of the capital cases in the United States. In fact, none of the appellant’s trial defense counsel met the minimum statutory qualifications governing counsel appointed to defend in federal capital cases.

To be fair, Capt DR, Capt DJ, and Mr. FS certainly appear to be capable, conscientious attorneys who worked diligently and tirelessly to defend their client. But in light of the import the overwhelming majority of capital jurisdictions accord to minimum standards for capital defense counsel, it strains credibility to conclude their judgment, efforts, and decisions were not handicapped by their own lack of training and experience.

Slip op. at 140 (Judge Peloquin dissenting) (citations omitted).

But on the issue that led the court to reverse the sentence the first time, Judge Marksteiner explains:

We conclude that although trial defense counsel were deficient in some areas, the appellant was not prejudiced by these deficiencies, and therefore under the second prong of Strickland we must resolve these issues against the appellant.

Slip op. at 38. The majority focuses on six aspects of the Defense sentence case:

(1) the scope of trial defense counsel’s investigation into, and failure to present evidence deriving from, a motorcycle accident the appellant was involved in four and a half months prior to the murders; (2) trial defense counsel’s failure to investigate and obtain records pertaining to the appellant’s mother’s treatment at an inpatient mental health facility; and (3) trial defense counsel’s failure to investigate and develop evidence of remorse through Deputy Sheriff LF. Then we will examine [4] whether counsel were ineffective in failing to offer evidence of the appellant’s future risk of violence, [5] failing to offer testimony of SP and KP, and [6] failing to object to inadmissible victim impact evidence.

Slip op. at 37-38.

Of the motorcycle accident, the majority concludes:

[O]n the facts now before us, where CP’s investigation on behalf of the defense produced only one witness in a hundred who observed a personality change in the appellant following the accident, where there was substantial evidence the appellant’s personality was not at all affected by the accident, and where the defense’s forensic psychologist concluded there was no reason to pursue such a theory, counsel may be deemed to have acted reasonably. We base our holding on the second prong of a Strickland analysis, finding no prejudice to the appellant.

Slip op. at 52. On the mother’s mental health records, the majority concludes:

While this case law establishes that mental disorders and a person’s disadvantaged upbringing can be persuasive components of a mitigation case, the simple mention of such evidence—let alone the mere possibility of the existence of such evidence—is not presumed to be talismanic. The fact that a person’s parents suffered from depression or substance abuse, or that he himself sustained a head injury that might have affected his behavior, does not carry the day for a party bearing the evidentiary burden defined in Strickland and further fleshed out in cases applying Strickland in this context. Rather, an appellant must demonstrate how these data points impacted his case in a way that the sentencing authority would have found sufficiently persuasive to impose a different sentence.

Though reasonable minds may differ with regard to whether trial defense counsel’s election to forego additional investigation into MP’s mental health or upbringing amounted to deficiency, the weight of the evidence adduced at trial suggests this theme would have been an even harder sell than the one involving the motorcycle accident and the possibility of a TBI. We find that appellant has failed to demonstrate a reasonable probability that, but for trial defense counsel’s failure to obtain and present this evidence, the result of his sentencing proceeding would have been any different. Therefore, we hold that the appellant’s trial defense counsel were not ineffective for failing to investigate and introduce the mental health records of the appellant’s mother.

Slip op. at 67 (emphases in original). On the issue of evidence of remorse, the majority concludes:

In light of the aggravating evidence in this case, we are unconvinced there is any reasonable probability the outcome would have been different if Deputy LF had testified about the appellant’s emotional breakdown during the Article 32, UCMJ, hearing. The overwhelming weight of the evidence paints a picture of a cold, calculated, vicious crime, carried out in the furtherance of a purely protectionist and self-serving objective. At trial, when the appellant chose to make written and verbal unsworn statements, he expressed remorse for his victims and their families in two paragraphs of his written statement and the following exchange during his oral statement:

Q: And, have you felt remorse about what you did that night?
A. Yes.
Q. And, is there anything you want to say to the families today?
A. Yes. To the families, the Schliepsieks and the Bielenbergs, I am so sorry. I am. From the bottom of my being, I am. I’m so sorry that I took your son and your daughter away from you. And, also to Mr. King, I’m so sorry for hurting you.

The Government had ample evidence on which to base an argument that any remorse exhibited by the appellant at the Article 32, UCMJ, hearing was more a matter of self-pity than sorrow for his victims and their families.

Slip op. at 72. The majority then rejects the assertion that the defense was ineffective for failing to present evidence about future risk of violence:

The appellant alleges his trial defense counsel were ineffective for failing to present evidence to the members indicating he “posed an extremely low risk of future violence.” Specifically, he argues his counsel were ineffective because the ABA Guidelines state that “future dangerousness is on the minds of most capital jurors, and is thus at issue in virtually all capital trials,” and because the post-trial submission of Dr. TR opined that the appellant had a low probability of future violence in prison.

First, as noted above, the ABA Guidelines are helpful but not binding on practitioners in military courts-martial. Second, Dr. TR’s declaration is, by all indications, a comprehensive literature review on the subject of future dangerousness of capital offenders in general. Notwithstanding his proffered “personal knowledge of the facts contained in []his declaration and . . . competen[ce] to testify about them,” his declaration is quite speculative as applied to the appellant. Two forensic psychologists who evaluated the appellant, Dr. BM and Dr. CR, both informed the defense team that they would be unable to testify as to the appellant’s future likelihood of non-violence based on their evaluations of him. Additionally, the Government was prepared to affirmatively call Dr. CR to rebut any assertions regarding the appellant’s future likelihood of non-violence. We therefore find no ineffectiveness in trial defense counsel’s informed choice not to pursue this theory in the appellant’s case.

Slip op. at 75. It similarly rejects the assertion regarding testimony of the appellant’s half-brother and half-sister:

The trial defense team had originally intended to offer the testimony of both children but later decided not to in order to avoid the appearance of trying to evoke sympathy in a way that could potentially backfire.

We find trial defense counsel articulated a strategic and tactical basis for deciding not to call SP and KP and will not second-guess that decision at this juncture. We find no ineffectiveness in their decision not to call SP and KP.

Slip op. at 75. Finally, the majority finds error in the failure of the Defense to limit the testimony of certain Government sentencing witnesses, slip op. at 79, but it concludes:

We, therefore, do not consider the comments the appellant now challenges, which were isolated and very brief in the overall context of the Government’s lengthy sentencing case, to be so unduly prejudicial that they rendered the trial fundamentally unfair. Id. More importantly, under the prejudice prong of a Strickland analysis, we find no reasonable probability that but for their admission, and trial defense counsel’s failure to request a curative instruction, the sentence would have been more favorable to the appellant.

Slip op. at 80. The majority also considers a handful of other asserted errors in the sentencing phase, rejecting them all.

Review by CAAF is the next step for this case, and is mandatory pursuant to Article 67(a)(1). There are now six prisoners on military death row: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

10 Responses to “The Air Force CCA reinstates the death penalty for Senior Airman Witt”

  1. stewie says:

    I’ll be honest, I think the Supremes got it wrong when they said you can’t second-guess strategic or tactical decisions in a capital trial. The as long as they had a reason no matter how bad argument is just antithetical to justice quite frankly, particularly when combined with the idea that the ABA Guidelines are advisory, which the vast majority of the time means meaningless.

  2. Zeke says:

    The ABA guidelines are the baseline standards of legal professionalism; “the ABA guidelines are not binding on practitioners in mlitary courts-martial;” hence, adherence to baseline standards of legal professionalism is not required in military courts-martial, not even in death penalty cases.  

  3. stewie says:

    well, no, the latter does not mean the former.  We apply a different baseline, not zero baseline. I don’t agree with not following the ABA Guidelines in DP cases, but that it’s only advisory doesn’t mean there is no baseline standard of legal professionalism in military courts-martial. Let’s not use hyperbole when fair criticism suffices.

  4. Zeke says:

    Fair point.

  5. Zeke says:

    @stewie – although, if the ABA standards are the baseline standards, a military “baseline standard” that falls below the ABA standard is still substandard.  We don’t get to redefine the standards however suits us, that’s the whole point of standards…

  6. A. Hernandez says:

    “We conclude that although trial defense counsel were deficient in some areas, the appellant was not prejudiced by these deficiencies…”  Except for the sentencing to death, that is.  And missing from the jurisdictions that would not allow any of the members of the defense team to defend a death penalty defendant is GITMO, which brings in trained counsel to defend enemy combatants facing the death penalty (and I know most, if not all, who read and post here know this, but it never ceases to amaze me the absurdity of that point).
    It is time the military gets out of the death penalty business.  We simply lack the training and expertise to do it.  Either create a bar of trained counsel that can defend these cases (never gonna happen), somehow sign an MOU with the Federal Public Defender’s office or pay for a qualified death penalty attorney.

  7. Zachary D Spilman says:

    Relevant to your point A. Hernandez is this excerpt from Judge Mitchell’s dubitante concurring opinion:

    As Judge Peloquin sets forth in his opinion, many of the state jurisdictions which have the death penalty as an authorized punishment include some requirement for minimum qualifications for defense counsel. The same is true within other federal death penalty statutory schemes. “Any alien unprivileged enemy belligerent” who is subject to trial by military commission when any of the charges is capital is entitled to representation “by at least one additional counsel who is learned in applicable law relating to capital cases and who, if necessary, may be a civilian” compensated by the Secretary of Defense. 10 U.S.C. §§ 948c, 949a(b)(2). A learned counsel is defined as “[a] military or civilian counsel, experienced in capital litigation, appointed under the provisions of 10 U.S.C. § 949a(2)(C)(ii).” Military Commissions Trial Judiciary Rules of Court, RC 4.2.c. (5 May 2014). To emphasize the importance of learned counsel, the Manual for Military Commissions prohibits the referral of a capital charge unless learned counsel has been appointed. Rules for Military Commissions 601(d)(2).  

    The current state of the law is that alien belligerents who are prosecuted under the Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq., are entitled to an attorney experienced in capital litigation; yet the brave men and women of our own armed services who fought, captured, or guard those belligerents are not. 

    Slip op. at 115-116 (Judge Mitchell, concurring).

  8. Dew_Process says:

    We conclude that although trial defense counsel were deficient in some areas, the appellant was not prejudiced by these deficiencies . . . .” [Slip Opn. at 37].

    Isn’t “death” about as prejudicial as it can get?

    Although these standards are instructive, it is important to note, as we did earlier, that they are not mandated for military defense counsel. [Slip Opn. at 38].

    @ Zeke – agree 100% with your response to Stewie.

    Trial defense counsel conducted no further investigation into the possibility of a TBI and introduced no evidence of the motorcycle accident at the appellant’s trial.  [Slip Opn. at 40; emphasis added].

    As the Court held in Rompilla v. Beard, 545 U.S. 374, 393 (2005):

    . . .  it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered “mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [Rompilla’s] culpability,” (citations omitted).

    In the context of death penalty litigation, viz., “death is different” and having second-chaired two such cases many years ago, it’s difficult to reconcile the somewhat circular reasoning by the en banc opinion in Witt, to wit: [pun intended]

    . . .  the appellant has failed to demonstrate the injuries he sustained in his motorcycle accident had any impact on his behavior the night of the murders, or that the members would have considered an unsupported proposition in that regard to have been sufficiently mitigating to render a more lenient sentence. [Slip Opn. at 41].

    Equally as troubling in this context is the majority’s conclusion that “The post-trial affidavits establish that an accident occurred, though the actual severity of the accident is unclear.” [Slip Opn. at 42; emphasis added].
    It is unclear because it was not investigated thoroughly to rule in or rule out its relevance and perhaps more importantly, materiality. Indeed, the total failure to introduce any evidence of the motorcycle accident at Witt’s capital court-martial is puzzling because it was “some evidence” that “some member” might have found mitigating – or perhaps not.  The failure to properly investigate this precludes any serious consideration of the “prejudice prong” imho.
    According to the holding in Strickland, the test for “reasonableness” of defense counsel’s conduct is an objective one — meaning, at least to me, that the ABA Standards are part of the equation, as Zeke suggests.  Or, as the Court held in Wiggins v. Smith, 539 U.S. 510, 521 (2003):

    We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (citations omitted).

    The ABA’s Standards here, are the “prevailing professional norms.”
    Finally, as the dubitante opinion and separate concurring in part / dissenting in part, opinions demonstrate, it is baffling that none of Witt’s trial defense counsel were “death qualified,” yet Congress has expressly legislated that requirement into both federal death penalty cases and for the GTMO military commissions that are referred as capital.  From my Rumpolian perspective, it seems strange that this was not litigated in the context of an Article 36(a), UCMJ, issue vis-à-vis the due process challenges.  I find it personally and professionally difficult to accept that an alleged “terrorist” at GTMO facing a capital trial has a more robust right to qualified counsel than what the AF CCA would provide to our servicemembers.

  9. Michael Lowrey says:

    And the revolving door continues over at AFCCA. Of the six judges that participated in this decision, only two are still on the court — now Senior Judge Martin Mitchell, who also was recently promoted to colonel, and Judge Melissa Saragosa, who’s a reserve officer. Judges Harney, Helget, Marksteiner, and Peloquin have all recently left the court.

  10. LT Caffey says:

    Revolving door indeed.  Senior Judges Harney, Helget, and Marksteiner (3/4 of the majority if you count Mitchell’s dubitante) all officially left the court (retirement or reassignment) on 30 June…the day the Witt opinion dropped.  While it is impossible to say whether five months (28 Jan and 30 Jun) between oral arguments and the issuing of a 114 majority opinion (significant portions of which, according to footnote 3, represent the original authorship of Judge Saragosa) is reasonable, the timing of the issuance in interesting in light of AFCCA Rule 19(e) which states “reconsideration of an en banc decision will not be held unless at least one member of the original majority concurs in the vote.”  Not sure that a request for recon by the appellant would have much of a chance in any event, but I would rather have four Powerball tickets than one.