Number 3 is a tough one for me to write about. In United States v. Akbar, CAAF, by a 3-2 vote, affirmed the death sentence for Sergeant Akbar following his murder of two officers and injuring 14 other servicemembers at the start of the Iraq War.
It’s tough to write about because capital cases are tough. I know, deep insight on our top ten list, right? But seriously, for those who have worked on capital cases, or even potential capital referrals, these cases consume you regardless of what side you are on. And while the government tosses out threats of capital referral and even does refer capital charges from time-to-time, the universe of counsel that have stood in the well before a panel in a capital case is thankfully small.
Col Sullivan described the difficulty of these cases like this once: when you are working on a capital case, it takes over your life. You end up feeling guilty going to the movies on a Saturday afternoon with you kids because you should be working on that motion, interviewing that witness, or preparing that expert.
Like any death-penalty case, this one involved dozens of issues. But the crux of the fight at CAAF was about ineffective assistance of counsel. The majority finds that the trial defense counsel were not ineffective and that their actions were the result of strategic decisions. There were two big decisions that the Court focused on. First, the decision to introduce Appellant’s diary in full to the members, over 300 pages that included plenty of harmful passages. Second, the decision to avoid “opening the door” to damaging cross-examination involving Appellant allegedly stabbing a MP with scissors days before the court-martial began. The defense avoided “opening the door” by not calling certain mitigation witnesses.
Another important issue was the voir dire. The defense employed a “ace of hearts” approach where they attempted to maximize the panel size on the theory that one vote means a life sentence so more members give higher odds of drawing that ace. Appellant ended up with 15 members on his panel.
A majority of the Court affirmed Appellant’s death-sentence. Of course, the President must sign the death-warrant before habeas proceedings can begin so realistically, we may be a decade or more away from any execution. Remember, as Dew Process pointed out, Gray was sentenced in 1988.
The dissent was powerful. Former CJ Baker wrote it, jointed by current CJ Erdmann. In it, he takes the whole system to task. Starting out powerfully, he writes, “Principle is hardest to hold in the face of countervailing virtue. For a judge that moment may arrive when knowing that 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.”
The dissent begins lamenting the lack of training, guidelines, and experience in capital cases in the military. Pointing out the military has guidelines on the length of hair and mustaches and the amount of fat permitted on a cut of meat served in the mess hall and on the placement of neckties in relation to one’s belt, but lacks any standards or guidelines for capital cases. The majority, once again, failed to adopt the ABA Guidelines. The dissent focuses on the diary and the witnesses. As to the diary, the dissent criticizes the introduction of over 300 pages, which included years of rants and hate. The defense strategy was to highlight Appellant’s descent into mental illness. And the whole diary certainly established the defense was not holding anything back or hiding anything from the members. But the dissent focused on the lack of expert consultation regarding the impact of the whole diary and the lack of explanation at the time of its introduction, which allowed the members to read it without understanding the defense theory.
With regard to the witnesses, the dissent focuses on the failure to call a witness from Appellant’s family or friends who could “humanize” him. This decision was made to avoid the government cross-examining those witnesses with evidence of Appellant’s very recent violent attack on a MP. But the dissent points out that ten of the members during voir dire acknowledging knowing something about the alleged assault.
Which circles back to the voir dire strategy. Because the defense employed the “ace of hearts” strategy for voir dire, they did not aggressively challenge potential members for cause on issues like pretrial publicity and knowledge of that recent assault. (For the true military justice geeks, note the reference to United States v. Calley, 22 C.M.A. 534 (1973) on the pretrial publicity issue).
The dissent’s problem the voir dire was the lack of support for such an approach in civilian capital cases. As Charlie Gittins pointed out, the approach more often taken in capital cases is the Colorado Method. Charlie used it his case and we used it in Walker. An aggressive use of challenges for cause using Morgan v. Illinois, 504 U.S. 719 (1992) to “life-qualify” a panel balances out the government’s use of Witherspoon v. Illinois, 391 U.S. 510 (1968) to “death-qualify” a panel. Interestingly, the dissent suggests the differences in the civilian and military jury and member-selection process may make the “ace of hearts” approach more effective in a court-martial even though it contradicts prevailing standards in civilian capital cases. The dissent points out this potential problem and just leaves it with a “This does not afford accused servciemembers the most effective capital defense.”
In my experience, the dissent is wrong here. The principles of the Colorado Method work just as well in military as civilian cases, perhaps more so. That is because one of the principles is teaching the members about the importance of respecting the other members’ views. Military panels are well positioned by discipline, experience, and training to respect the views of others when they are told that is what they have to do. And in Walker, post-trial exchanges with several members confirmed several of them considered their obligation to respect everybody’s views during deliberations.
Lastly, the dissent focused on the fact that the panel requested reconsideration. So, the dissent reasoned, any errors were prejudicial because the panel was so close to going the other way.
At the end of the day though, this case, like all capital cases was a tragedy. It was a tragedy first and foremost of the victims and their families. It is a tragedy because servicemembers do lack the protections afforded civilians, and even terrorists under the Commission system, to learned counsel and counsel with effective training and experience in capital litigation. It is a tragedy because excellent trial defense counsel have to see others pick apart their work that they poured their heart and souls and lives into. Just like the prosecutors did as well. Because even if the decision was just, it just doesn’t seem fair. And our system should both be fair, and appear fair.