Love the argument in the Akbar v. United States, No. 15-1257, Petition for Certiorari (here).

Ring v. Arizona, 536 U.S. 584 (2002) held that aggravating factors in capital cases constitute elements of the crime that must be tried to a jury. Does it violate the Constitutional separation-of-powers or exceed statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.

Scintillating reading ladies and gentlemen, scintillating.

13 Responses to “Akbar v. United States Petition for Certiorari”

  1. stewie says:

    Can’t tell if mocking or not but that is scintillating reading to me. It’s an interesting question that’s worth throwing out a line/nibble for the Court to consider taking the case. I mean we know that generally speaking they don’t take military cases, and while a DP case increases the chances, it doesn’t make it a slam dunk either. So any hook you can use to get the Supremes to open the door is a good hook.

  2. Mike "No Man" Navarre says:

    Stewie–You may be the only reader that hasn’t made fun of my obsession with this issue.  See traces of the obsession here, here, and here. So, yes, 100% serious.

  3. stewie says:

    It’s possible there are reasons why I don’t make fun of your obsession. :) But in all seriousness, I think it’s great it’s being raised at that level. I know the attorney who worked on the original Ring argument for Akbar’s initial appeal, and she put a lot of good work into it!

  4. Peanut Gallery says:

    most impressively, these attorneys have apparently been writing this brief for more than four years!

  5. Tami a/k/a Princess Leia says:

    Perhaps defense counsel should argue for LWOP at trial on the basis of “death penalty litigation on appeal takes forever, and chances are pretty good that the accused will die before mandatory appeals are done.  In that case, the convictions go away like they never existed.  Is that justice for the victims?  If you don’t think that’s justice, and you want to increase the chances the accused dies with convictions that are final, then vote for LWOP.”

  6. stewie says:

    DP appeals take forever for good reason IMO, particularly in the military where at no level do we have the requisite experience to do them properly.

  7. Joseph Wilkinson says:

    What interests me is this — that the petition is based on one issue instead of dozens.
     
    I skimmed through the original appellate briefs when they came out, and they fit what I had always seen in death penalty court opinions: a huge laundry list of issues, including things the Supreme Court had shot down decades ago.  (On the understandable theory that a new Supreme Court might change its mind in the years to come.) 
     
    But this petition for certiorari picks out one and sticks with it.  Is that normal?

  8. stewie says:

    Well they are trying to get the Supremes on board and probably figure that odds are they aren’t going to care enough about any of the other issues since they tend to let CAAF have the last word 99.9% of the time, but this one issue might perk their attention since it involves actual Supreme Court precedence.

  9. Joseph Wilkinson says:

    That may well be their motive.   Still, I’m interested in knowing whether that is usual in death penalty Supreme Court cert petitions. 
     
    In some states, such as Alabama, you get automatic Supreme Court review and automatic oral argument in death cases (or at least that was the rule when I was there).  So there’s no incentive not to laundry-list in those states.  I can well imagine the feds are different since the federal Supreme Court doesn’t have to grant cert.  But I am curious as to what is usually done.
     
    In general I admire gutsy moves that put “getting relief for the client” above “covering your backside for fear of ineffective assistance claims.”  This may be that.

  10. Dew_Process says:

    @ JW – Since a denial of certiorari – especially on direct appeal – has no precedential value, Akbar’s focusing on one issue is pretty much par for the course for SCOTUS practice. In U.S. v. Ronald Gray, e.g., an Army DP case [DISCLAIMER: I’ve been involved with the Gray litigation for 16+ years now], his appellate counsel on direct appeal submitted the following 3 issues to SCOTUS in their cert petition:
     

    1. Whether a defendant may be sentenced to death by a court-martial panel of fewer than twelve persons.
    2. Whether the convening authority’s power to select subordinates to serve as court-martial members violates the Constitution.
    3. Whether the military judge who conducted petitioner’s voir dire complied with the procedural requirements of Batson v. Kentucky, 476 U.S. 79 (1986).
     

    SCOTUS denied certiorari even though QP #1, was well-preserved at the trial level, although it did then prompt Congress to enact Article 25a.
     
    For anyone following the Akbar litigation, you will know that it is a criminal procedure professor’s nirvana, while conversely, a living hell for his appellate defense counsel.  Much of the ACCA and CAAF litigation focused on IAC issues and whether or not the “right to counsel” in a DP case required a “death qualified,” or in GTMO parlance, “learned counsel.” If you read the Statement of Facts in Akbar, the IAC issue is teased, but not presented — I  don’t know why, but I’m in no position to speculate.  But, that is one of the underlying problems that I think SCOTUS will want the federal habeas litigation to sort out down the road.
     
    One of the core, constitutional issues is quite basic:  Does the Constitution even demand a trial by members, even in a DP case? Sure, Congress, using its Article I, Sec. 8, “Make Rules” power has statutorily granted such, but of course that could be repealed, albeit highly unlikely imho. Furthermore, in the context of “original practice,” Geo. Washington in the proposed Articles of War that the Congress adopted in 1776, included a provision that a DP case would have a 13 member panel [the 13th being the “law officer”], which somewhere along the way before Art. 25a’s enactment, disappeared.
     
    So, the first assumption that Akbar is based upon, is that there is a constitutional right to a panel in a DP court-martial. But, assuming that right (forgetting Art. 25a for a moment), is there a concomitant right to a 12 person panel?  That issue was squarely presented in Gray, and preserved, as the venire started out with 15, and ended with 6. The defense objected on constitutional grounds, the MJ said that he was “inclined” to agree, but quickly retreated when the TC objected and pointed out that Gray was only “entitled” to a five-person GCM panel! From the RoT in Gray:
     

    MJ: Well, I interrupted my thought merely because if the government were to be of the mind that they wanted to have twelve members, I certainly wouldn’t contest it. [emphasis added]
    TC: We are not, Your Honor.
    MJ: All right. Based upon the rationalization advanced previously, the motion for requirement of at least twelve members is denied. [R. 770].
     

    Gray was thus sentenced to death by a 6 person panel, and SCOTUS didn’t bite on that issue. While not at issue in Akbar, it would seem to be a “better” or at least more viable issue, than presented in Akbar — and this is not a criticism of any of his learned counsel – they’ve got a very tough Record to deal with. But, considering Congress’s power under the “Make Rules” clause of Article I, and the powers granted to the CinC in Article II, and now with an 8 person Court, getting the necessary 4 votes for certiorari is going to be a challenge at best.
     
    That being said, “No Man’s” observations are spot-on and the issue is clearly ripe for resolution, the only question being is Akbar an appropriate vehicle in view of its preservation and IAC underpinnings?
     
     

  11. Joseph Wilkinson says:

    Thank you, DP.  Given what you say about “no precedential value,” do I understand that if the Defense had fifty issues to appeal, they could file one or two at a time in separate petitions, with no fear of waiving them, or even bring the same ones back if the court changed personnel? 

  12. Tami a/k/a Princess Leia says:

    How does anyone know the panel originally voted for death and only one member voted to reconsider?  Reconsideration to increase the sentence is allowed.  “Reconsideration has been proposed” could also mean that originally, 3 voted for death and 12 out of 15 voted for LWOP (which shows that ace of hearts strategy worked), but then 5 of those 12 had a change of heart and voted with the 3 “dissenters” to reconsider, and then upon reconsideration they all voted for death.

  13. stewie says:

    Or it could be they all originally voted for death but one or some had more questions and wanted to really really be sure.  We don’t know. What can be fairly argued by defense though, is that it wasn’t a complete slam dunk for the panel which suggests prejudice.