Of the six service members on the military’s death row (Gray, Loving, Akbar, Witt, Hennis, and Hasan), Senior Airman Andrew Witt has the fourth oldest sentence. In 2005 a general court-martial composed of twelve officer members convicted Witt of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, and sentenced him to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial: Behavioral changes in Witt after a motorcycle accident that occurred four months before the murders, the mental health history of Witt’s mother, and expressions of remorse by Witt that were observed by a deputy sheriff.

But the court split 3-2 on the question of prejudice, narrowly finding that “had the members been confronted with this additional mitigating evidence, there is a reasonable likelihood that at least one member would have struck a different balance between the aggravating and mitigating factors and would have returned with a different sentence.” 72 M.J. at 766. The CCA remanded for a sentence rehearing where Witt could have received another death sentence, a sentence of confinement for life without eligibility for parole, or the mandatory minimum sentence of confinement for life with eligibility for parole.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014. United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

As it had in the first decision, in the second decision the CCA found that Witt’s trial defense counsel were deficient, but only clearly so on the issue of counsel’s failure to investigate whether the deputy sheriff could have offered favorable testimony about Witt’s expression of remorse. Of the other two areas of deficiency identified in the first review, the majority’s conclusions in the second review were noncommittal: On the issue of the motorcycle accident, the majority concluded that “whether trial defense counsel rendered substandard assistance under the deficiency prong of a Strickland analysis may be subject to debate.” 73 M.J. at 784. And on the issue of the mental health history of Witt’s mother, the majority concluded that “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.” 73 M.J. at 794.

The CCA also found that the trial defense counsel were deficient in failing to “research[] and underst[an]d the extent to which they may have made arguments to limit the substance, as well as the quantity, of victim impact testimony offered by the Government’s sentencing witnesses at trial.” 73 M.J. at 802.

But on the crucial question of prejudice, the majority was unequivocal: “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.” 73 M.J. at 774 (emphasis added). Accordingly, the majority approved the adjudged sentence of death.

The majority opinion on reconsideration was authored by Judge Marksteiner, who dissented from the CCA’s first opinion (that set aside the death sentence) on the basis that Witt was not prejudiced by any deficiency in his counsel’s representation. Judge Marksteiner’s majority opinion was joined by Chief Judge Helget (who was not part of the first decision) and Senior Judge Harney (who was also in the majority in the first decision, and whose change of opinion in this case is unexplained).

Dissenting (in part) were Judge Saragosa (who wrote for the majority in the first decision, setting aside the death sentence) and Judge Peloquin (who was not part of the first decision), both of whom found prejudicial deficiencies in the performance of Witt’s defense counsel during the sentencing phase, and would therefore set aside the death sentence and authorize a rehearing.

The final judge concurred with the majority, but did so dubitante (“doubting”). While joining the majority decision “in its entirety,” Judge Mitchell (who was not part of the first decision) shared the concerns of one of the dissenting judges that “in a court-martial referred as capital, servicemembers do not have the same institutional protections as those afforded criminal defendants facing the death penalty in a majority of our Nation’s jurisdictions.” 73 M.J. at 825.

Those concerns came from Judge Peloquin, who joined Judge Saragosa’s opinion dissenting from the majority’s finding of no prejudice, but who also wrote a separate opinion “to address the lack of minimum qualification requirements within the military justice system for counsel defending a military member facing the death penalty.” 73 M.J. at 840. That opinion included the following commentary about Witt’s trial defense team:

[U]nder the UCMJ and the Manual there are no minimum qualification standards for counsel appointed to defend a capital case aside from certification under Article 27, UCMJ. In the United States Air Force Judge Advocate General’s Corps, that certification is met after completion of a 9–week staff officer course and serving as assistant trial counsel or trial counsel in a handful of courts-martial.In the Air Force, the authority to detail defense counsel has been delegated from The Judge Advocate General to the Chief, Trial Defense Division and other delegees.

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 trials 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. While he focused primarily on the findings phase of the court-martial and preparing a defense against the allegations of premeditated murder, Capt DR was assigned primary responsibility for preparing the sentencing case.

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.

73 M.J. at 843-844 (citations omitted).

It’s hard not to think that the Air Force CCA was holding its nose as it approved the death sentence in this case. CAAF review is mandatory pursuant to Article 67(a)(1). The concerns about counsel qualifications raised by Judge Peloquin’s dissent and by Judge Mitchell’s dubitante concurring opinion will likely have a significant impact on that review, as they share a theme with an issue CAAF is considering this term in its review of the capital sentence in United States v. Akbar, No. 13-7001/AR (CAAFlog case page).

And so while the reinstatement of Witt’s death sentence is our #7 Military Justice Story of 2014, the case is far from over.

2 Responses to “Top Ten Military Justice Stories of 2014 – #7: The Air Force CCA reinstates Senior Airman Witt’s death sentence”

  1. Zachary D Spilman says:

    And on Christmas Eve the case was docketed at CAAF:

    No. 15-0260/AF.  U.S. v. Andrew P. Witt.  CCA 36785.  Notice is hereby given that a case requiring mandatory review of the decision of the United States Air Force Court of Criminal Appeals in which the affirmed sentence extends to death was filed under Rule 23 on this 24th day of December, 2014.* 

    Appellant will file a brief under Rule 23(b), not to exceed 250 pages, no later than sixty days after the date of this notice.  Appellee will file a brief, not to exceed 250 pages, within sixty days of the filing of Appellant’s brief. Appellant may file a reply brief, not to exceed 50 pages, within twenty days of the filing of Appellee’s brief.  The briefs may be filed electronically, but should counsel file said pleadings in a paper format, such pleadings shall conform in all respects to the requirements of Rule 37(a), with the additional requirement that they be printed on 3-hole pre-punched paper and otherwise comply in all respects with Rule 24(f)(2).  The briefs and the reply, if any, shall be divided into the following parts: Part A shall set forth systemic issues and case-specific issues raised before the Court of Criminal Appeals but not previously decided by this Court; Part B shall set forth all issues not raised before the court below; Part C shall set forth systemic issues previously decided by this Court but raised to avoid waiver; these issues may be listed without argument as an exception to Rule 24(a), but must cite pertinent authority to support the position taken.  All exhibits cited in the pleadings filed before this Court shall be included in the Joint Appendix.  After all pleadings have been submitted, Appellant and Appellee are directed to seek agreement on the issues to be heard at oral argument, and to inform the Court of those issues.  If no agreement can be reached, the parties will so advise the Court within 10 days of the date of the filing of the last pleading, and the Court will resolve any differences.

    * The caption on the document filed by the Judge Advocate General states that it is a “Certificate for Review” rather than a “Mandatory Review Case” as required by Rule 23. However, upon review of the document, this appears to be a scrivener’s error.

  2. AF JAG says:

    On the “qualification of counsel” issue, what of the fact that Appellant hand picked his civilian defense counsel, Mr. Frank Spinner, whom he now claims was “unqualified” to represent him at trial?
    I think Appellant’s argument that his counsel were constitutionally “unqualified” would have some more teeth if we were talking solely about appointed counsel, but we’re not.  Appellant could (theoretically) have chosen to employ the services of any civilian defense counsel that he wanted, but he didn’t–he chose Mr. Spinner.  There’s no evidence on the record (that I’m aware of from reading this case) that Mr. Spinner ever misrepresented his qualifications or experience to Appellant, so Appellant knowingly and voluntarily made his choice of lead trial defense counsel.  Given these facts, how has Appellant not “waived” the qualification issue (at least as to his lead CIV trial defense counsel)?
    Now then, of course the mere act of hiring Mr. Spinner does not mean Appellant waives any “ineffectiveness” by his selected counsel at trial.  Obviously Appellant is free to argue that his hand selected counsel was “ineffective” within the meaning of the 6th Amendment.  However, it is a different argument to complain on appeal that the counsel you hand selected was “unqualified”–that just smacks of “invited error” to me.  See United States v. Raya, 45 M.J. 251, 254 (C.A.A.F. 1996) (“A petitioner cannot create or exacerbate an error and then take advantage of a situation of his own making”).