Our #7 Military Justice Story of 2014 was the Air Force CCA’s reinstatement of the death sentence in the case of Senior Airman Witt, one of only six prisoners on military death row (the others are Gray, Loving, Akbar, Hennis, and Hasan). 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. It 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).

The case was forwarded to CAAF, where review is required by Article 67(a)(1).

Last Friday, CAAF specified an issue for briefing that questions the appropriateness of the CCA’s decision on reconsideration:

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785.  On further consideration of the record, it is ordered that the parties brief the following specified issues:

WHETHER A COURT OF CRIMINAL APPEALS SITTING EN BANC CAN RECONSIDER A PREVIOUS EN BANC DECISION OF THAT COURT PURSUANT TO STATUTORY AUTHORITY, APPLICABLE PRECEDENT, OR INHERENT AUTHORITY?

WHETHER A DECISION OF A COURT OF CRIMINAL APPEALS SITTING EN BANC CAN BE RECONSIDERED EN BANC WHEN THE COMPOSITION OF THE EN BANC COURT HAS CHANGED?

The parties will brief these issues contemporaneously, and file their briefs on or before January 5, 2016. Reply briefs on these issues may be filed on or before January 15, 2016.

3 Responses to “CAAF to examine the Air Force CCA’s reconsideration of Airman Witt’s death sentence”

  1. Dew_Process says:

    The second issue is the clincher, especially since the AF has no “tenure” rules for judges and considering the composition of the court changed significantly.

  2. Shane Diesel says:

    Clincher my azz.  A “court” has the inherent authority to reconsider its rulings.  And a “court” does not change based on the membership.  It’s still the same “court.”  This issue will go precisely nowhere.

  3. Expressio Unius says:

    Normally I’d agree with Shane Diesel.  But, interestingly, Congress appears to have actually spoken regarding the power of a CCA to conduct reconsideration.  Art 66(a) says, in relevant part: “Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules.”  There is no similar provision allowing for reconsideration of an en banc decision.  Generally, expressio unius est exclusio alterius. I think that’s the sticky wicket CAAF is getting at with the first specified issue.  Therefore, it looks like, in Art 66(a), Congress has tied the CCAs’ hands in terms of whether they may recon their previous en banc decisions.  That’s sensible legislative policy, actually.  Prohibiting recons of en banc decisions would help insulate the CCAs from UCI by discouraging TJAGs from reshuffling a Court after an unpopular en banc decision gets issued.  That’s true because, even if TJAG did reconstitute the CCA with “new” judges, there’s no way the “new” Court could “correct” the offending decision anyway.  It encourages TJAGs to just grumble to themselves but to leave leave the CCA alone, despite any concern TJAG might have about any individual decision.  Taking away an incentive that TJAGs might have to disturbing the composition of CCAs, while not a good as guaranteeing lifetime tenure, hopefully has a net positive effect of encouraging a sense of judicial independence, which hopefully has the effect of fostering stability in how the law is interpreted over time.