CAAF will hear oral argument in the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page), on Tuesday, November 18, 2014. The court is conducting mandatory review of the case pursuant to Article 67(a)(1) because the appellant was sentenced to death after he was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of premeditated murder and three specification of attempted premeditated murder, in violation of Articles 118 and 80.

Appellant attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, leading to his court-martial and death sentence in 2005. The Army CCA affirmed the death sentence in 2012 (discussed here). Notably, Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

Akbar’s brief to CAAF raises 59 assignments of error, but the court’s website identifies only five as set for oral argument next week:

(1) Whether the Appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment to the U.S. Constitution, at every critical stage of his court-martial;

(2) Whether this Court should order a post-trial evidentiary hearing to resolve disputed factual issues relevant to Appellant’s numerous collateral claims unless the Court finds in his favor on another dispositive ground;

(3) Whether the prosecution’s victim impact presentation and argument, and counsel’s failure to object, violated Appellant’s Fifth, Sixth, and Eighth Amendment rights;

(4) Whether the military judge denied Appellant a fair trial by failing to sua sponte dismiss fourteen of the fifteen panel members for cause based on actual and implied bias manifested by relationships of the members, a predisposition to adjudge death, an inelastic opinion against considering mitigating evidence on sentencing, visceral reactions to the charged acts, preconceived notions of guilt, and detailed knowledge of uncharged misconduct that had been excluded; and

(5) Whether the analysis of the Army Court of Criminal Appeals of Appellant’s case was flawed because of its misapplication of the standards applicable to federal and state capital defense counsel and that court’s determination that counsel were “well-qualified.”

CAAF granted each side an hour to present oral argument (typically each side receives just 20 minutes).

Appellant’s brief is 328 pages, the Government’s answer is 350 pages, and Appellant’s reply brief is 58 pages. Because of the number of issues in this case, I’m not going to engage in my normal analysis of the briefs in advance of the oral argument. However, I do note that the fifth issue to be argued has echoes of Judge Mitchell’s dubitante opinion in the Air Force CCA’s approval of the death sentence in United States v. Witt, No. 36785, 73 M.J. 738 (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

I’ll also note two informative posts about the military death penalty system from our archives (both written by Dwight Sullivan). The first is from 2007: Military death penalty system by the numbers. The second is from 2009: Military death penalty stats: building the pyramid.

Case Links:
CAAFlog case page
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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