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  whether counsel were ineffective in failing to offer evidence of the appellant’s future risk of violence,  failing to offer testimony of SP and KP, and  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?
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.