Opinion here. Judge Olson writes for a three judge majority. Judge Baker dissents, joined by Chief Judge Erdmann.

Prior coverage at the CAAFlog case page.

More to follow.

18 Responses to “CAAF affirms death sentence in Akbar”

  1. ScottComstock says:

    193 pages?  If this gets up to the Supreme Court, I’d love to see the over/under for the combined page count of the parties’ briefs…

  2. Dew_Process says:

    Principle is hardest to hold in the face of countervailing virtue. For a judge that moment may arrive when knowing what is just, one must also consider what is fair. This is a case about whether or not the military justice system was fair, not whether it was just.

    Baker, C.J., dissenting.


  3. stewie says:

    It will certainly be certed to the Supremes, whether they take it of course is a whole other kettle of fish. Regardless, while I think the dissent is right, this isn’t unexpected.  The reality is Loving and Grey are nowhere close to be executed so Akbar has a long, long life ahead of him. Having said that, the dissent is right on in noting we don’t do DP defense well because we simply don’t have trained counsel to do it. Since we don’t ever end up executing folks anyways, we ought to get out of the business period.

  4. Tami (a/k/a Princess Leia) says:

    Yes!  And that only took 10 years?

  5. stewie says:

    12 technically from trial…but still have reconsideration, Supreme Court cert, even they don’t grant cert that’s still taking us to next year, then to the President, but Loving’s has been ready for that since what 2009? 2010? Assume it’s signed by some President say 10 years from now…then you have habeus…and Grey is still sitting in the preliminary stages of that after 7 years.

    So if Akbar is executed before 2030, it will be highly unlikely and by then he’ll be what in his 60s?

    Reason number 124 why we need to give up the death penalty.

  6. Bill Cassara says:

    Stewie is correct. Regardless of one’s personal opinions on the DP, the military should not be in the DP business.  The MJ system is simply not capable of doing it up to ABA or Supreme Court standards.  Just the nature of the beast.

  7. Charlie Gittins says:

    Having tried a capital-referred case  on the merits, I totally agree that the military should be out of the DP business.  No one, not the judges, counsel or members are properly trained to try such cases (a point that our defense team supported with ample evidence).  That said, it is unclear to me what specific training the counsel in this case had on voir dire, particularly the Colorado method.  Because of the homgenity of military members — vastly more conservative that the public at large — it is critical to identify the automatic killers and get them off the panel while trying to retain the members who might be inclined to vote for life.  We “won” the case I tried in voir dire by empaneling a member unlikely to vote for death and having those excused those who either could not underatnd the law despite repeated coaching (amazing!) or would vote for death in almost any circumstance that involved killing of another human (“eye for an eye” zealots) while recognizing that most of the others were likely killers but understood what they needed to say to stay on the panel. 

  8. Dew_Process says:

    The Supremes imho, are very unlikely to grant cert. at this stage of the process.  They will wait for the habeas process to be litigated and completed. But, that can’t even begin until the Presidential Action occurs.
    Consider Gray, an Army defendant on death row [DISCLAIMER: I’ve worked on various issues involving Gray now for 15 years!], who was sentenced to death in 1988.  His initial federal habeas hearing was held just a few months ago.  And Gray’s got a great issue that SCOTUS may bite off on, viz., can a person constitutionally be sentenced to death by a panel of only six members?  The sub-issue is that when the challenges were done at his court-martial, the Defense moved to have additional members appointed so as to bring the panel up to 12 voting members.  The MJ stated initially that he didn’t oppose that process, but when the TC did, the MJ ruled that it was the “government’s” call.  So you have the anomaly of the TC controlling the size of a death-penalty qualified panel.
    Add to that, the fact that Art. 25a’s requirement for 12 person panels in military capital cases was added effective 2002, four years after Gray was sentenced and you have an issue of whether by enacting Art. 25a, Congress took the death penalty off-the-table in cases where there could have been, but weren’t 12 panel members.
    For a brief overview of Gray, see this LINK.

  9. stewie says:

    Concur Surpemes won’t touch now, but I was just assuming they’d make that cert anyways now, and then again after habeus…assuming we ever get to habeus because some President signed the death warrant.

  10. Dew_Process says:

    @ Stewie – The law on federal habeas actions is so screwed up, especially in the context of exhaustion and waiver issues, that no counsel in their right mind wouldn’t seek cert at this stage even if for no other reason than to prevent an IAC claim down the road.  Notably (and I forgot to mention this in my prior post discussing Gray), Gray sought cert on direct appeal – which is when I got involved originally – which was denied.  However, the pleadings on the 6 member panel issue vis-à-vis the death penalty issue, got traction and resulted in the legislative “fix” in Art. 25a – whether in Gray’s case that’s retroactive, remains to be seen.
    Akbar has, like all capital cases, its own individualized quirks, and how they play out down the road will be interesting.

  11. stewie says:

    I’m certainly no habeas expert so I defer.

  12. Bassomatic says:

    Once again, Baker is all flowery language and no bloom.  I am reminded again of his remark in US v. Townsend, 65 MJ 460, 467 (CAAF 2008), “As with the trees at Dolly Sods, the wind only blows in one direction.” 

  13. Glen Hines says:

    I don’t know that anyone should be in the DP business, but it isn’t because of incompetence.  Have you seen the horror stories from places like my home state of Texas where unethical prosecutors have railroaded innocent defendants?  I have to respectfully disagree with some of the learned folks posting here.  Akbar fragged some people.  Honestly, what is so difficult about that?  I find it noteworthy that the only voices arguing the military is incompetent to do the DP are defense voices.  The real reason the military should be out of he DP business is that it is never carried out; get it off the books and make LWOP the max punishment.

  14. stewie says:

    I could be wrong, but most people who get the DP did something pretty bad. Some are innocent for sure, but most are not. Of course, that’s not remotely relevant to whether or not the process of defending said folks is fair or not. Akbar’s a bad guy, and the prosecutors were not unethical so what’s the problem, right?

    Actually, if you read the dissent, there were two “non defense attorney” voices who came mighty close to saying “the military is incompetent to do the DP” at least as currently situated. It most certainly does not measure up to the civilian practice (which is apparently the new gold standard among some). How many JAGs across all services do you think would qualify as “learned counsel” in the civilian world over the last 20 years? I can’t think of one. the closest I can think of might be LTC (R) Carpenter, and I suspect he’d disagree with that assessment.

    Yes, the only folks saying defense counsel aren’t competent in this arena are defense counsel. (except for all the cases that were overturned, the two dissenters in this case, and any objective comparison between military defense counsel experience in DP cases and their civilian counterparts).

    Look at the way we prefer/refer DP charges and the way the Attorney General does it…you’ll see major differences there as well. We don’t even really have a special section of rules for DP cases…we have a few difference plugged in to various rules, and we have case law…but no separate preferral/referral process…no separate Article 32 process…no formal mechanism for submissting defense materials to the GCMCA prior to a capital referral.

    And yes, as you’ve noted, we screw it up so much that most cases get overturned, and the ones that don’t almost never get signed, and when they do, then they go into habeas.

  15. Glen Hines says:

    I respecfully disagree Stewie. Just because cases are overturned doesn’t mean people are screwing them up. It means our appellate courts are way more paternalistic. Go read a few federal circuit opinions regarding district judge’s rulings on jury selection or evidence.  It’s extremely deferential most of the time. And I was an AUSA for a time, and I’m  well acquainted with DOJ’s layers upon layers of micromanagement all the way up and down the chain. Just because you have lots more people ensconced in their offices in main justice looking at your work doesn’t mean they do it better.   

  16. stewie says:

    So which DP cases in the military were overturned not for real issues but an over-paternalistic appellate system?
    I’ll hang up and listen over the radio.

  17. Glen Hines says:

    Aw Stewie, did I explode your deeply-held convictions and make you stoop to an emotional retort?  Read Parker, Walker and Quintanilla. Marine cases.  Then go find me a circuit court or state case that set aside DP cases on the same issues. 

  18. stewie says:

    I don’t think you understand the word emotional if you think asking you for examples of your claims counts as an “emotional” retort.
    Let’s just look to start at Parker…the court found the evidence insufficient for one of the two murder convictions, as well as spillover issues and the lack of a spillover instruction (which is probably extra problematic when one of the two convictions has insufficient evidence to back it up).
    Is your argument that no civilian court has ever found an issue with sufficiency of evidence in a DP case? Or that it wouldn’t care about spill-over? Because I don’t have to jump on Lexis to know that isn’t true.
    Do better.